Lucas Eduardo Velez v. U.S. Atty. Gen.

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 8, 2010
JOHN LEY
ACTING CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-12206
Non-Argument Calendar
________________________
Agency No. A097-643-142
LUCAS EDUARDO VELEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 8, 2010)
Before HULL, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Lucas Eduardo Velez, a citizen of Colombia, petitions for review of the

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Board of Immigration Appeals’s (“BIA”) denial of his motion to reopen removal
proceedings. Velez argues that the BIA abused its discretion by denying the
motion because he submitted previously unavailable evidence showing a material
change in country conditions. After review, we deny the petition.1
A motion to reopen may be granted if the alien presents to the BIA new
evidence that is material and could not have been discovered or presented at the
removal hearing. 8 C.F.R. § 1003.2(c)(1). An alien moving to reopen bears “a
heavy burden.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006). To
show that evidence of changed country conditions is material, an alien must
present evidence demonstrates that, if proceedings were reopened, the new
evidence would likely change the result in the case. Id. Here, we find no abuse of
discretion.
Velez’s original asylum application was based on his membership in a
particular social group, that is, homosexuals. Velez claimed that he feared future
persecution in Colombia because he is gay. At his original hearing before the
Immigration Judge (“IJ”), Velez called an expert witness who testified about the
practice of police, paramilitary groups and guerillas attacking “undesirables,”
We review the BIA’s denial of a motion to reopen for abuse of discretion. Scheerer v.1
U.S. Att’y Gen., 513 F.3d 1244, 1252 (11th Cir.), cert. denied, 129 S. Ct. 146 (2008). Our
review is limited to whether the BIA exercised its discretion in an arbitrary and capricious
manner. Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005).
2

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including sexual minorities, called “social cleansing.” Velez also submitted
Country Reports for 1995, 1998 and 2000 to 2006 and numerous articles
documenting violence against homosexuals in Colombia and social cleansing. The
IJ determined that this evidence showed isolated incidents of private violence
against members of the gay community, but did not establish that Velez himself
would more likely than not be persecuted upon his return to Colombia.
The new evidence Velez submitted with his motion to reopen was the 2007
Country Report and two articles. This evidence showed that homosexuals in
Colombia, especially transvestite prostitutes and non-governmental organization
(“NGO”) activists, are sometimes victims of violence and social cleansing. This
evidence is consistent with the voluminous evidence that was already before and
considered by the IJ. Contrary to Velez’s assertions, the newly submitted evidence
does not show that violence against homosexuals has increased since the IJ’s
decision. Notably, Velez is neither a transvestite prostitute nor an NGO activist, so
much of this evidence is of marginal relevance to his persecution claim. Because
Velez failed to provide material evidence of changed country conditions, the BIA
did not abuse its discretion in denying his motion to reopen. Accordingly, we deny
the petition for review.
PETITION DENIED.
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