Daniel Fernandez v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11040
Non-Argument Calendar
____________________
DANIEL FERNANDEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A074-692-058
____________________
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2 Opinion of the Court 21-11040
Before J ILL PRYOR , BRANCH, and BLACK , Circuit Judges.
PER CURIAM:
Daniel Fernandez, a native and citizen of Cuba, seeks review
of the order of the Board of Immigration Appeals (BIA) denying his
second motion to reopen his removal order based on materially
changed country conditions. Fernandez contends the BIA erred in
finding he failed to provide evidence of a material change in cir-
cumstances in Cuba, and instead presented evidence of a change in
personal circumstances. After review,1 we deny the petition.
An alien generally may file one motion to reopen proceed-
ings within 90 days of the date of an order of removal and must
state the new facts that will be proven at a hearing to be held if the
motion is granted and be supported by affidavits or other eviden-
tiary material. 8 U.S.C. § 1229a(c)(7)(A)–(C)(i). However, there is
no time limit on the filing of a motion to reopen to apply for asy-
lum or withholding of removal based on “changed country condi-
tions arising in the country of nationality or the country to which
removal has been ordered, if such evidence is material and was not
available and would not have been discovered or presented at the
1 We review the denial of a motion to reopen an immigration proceeding for
an abuse of discretion, under which we will only determine whether the BIA
exercised its discretion arbitrarily or capriciously.
Jiang v. U.S. Att’y Gen., 568
F.3d 1252, 1256 (11th Cir. 2009).
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21-11040 Opinion of the Court 3
previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). While an alien
is generally limited to filing only one motion to reopen removal
proceedings, the numerical limitation does not apply to a motion
to reopen to apply or reapply for asylum or withholding of depor-
tation based on changed circumstances arising in the country of na-
tionality or in the country to which deportation has been ordered,
if such evidence is material and was not available and could not
have been discovered or presented at the previous hearing. 8
C.F.R. § 1003.2(c)(2), (c)(3)(ii).
The BIA did not abuse its discretion in denying Fernandez’s
second motion to reopen. First, the BIA correctly concluded Fer-
nandez’s second motion to reopen his removal proceedings was
time and number barred. Fernandez filed the second motion to
reopen approximately 15 years after his final order of removal, well
beyond the 90-day limit, and had previously filed a motion to reo-
pen his removal proceedings in 2010. 8 U.S.C. § 1229a(c)(7); 8
C.F.R. § 1003.2(c)(2).
Moreover, the BIA did not err in concluding Fernandez
failed to establish a material change in circumstances in Cuba. Spe-
cifically, Fernandez failed to provide evidence of the country con-
ditions in Cuba at the time of his merits hearing in 2005, or at any
point in the intervening 15 years, to demonstrate a material change
in circumstances.
See Matter of S-Y-G-, 24 I. & N. Dec. 247, 253
(BIA 2007) (“In determining whether evidence accompanying a
motion to reopen demonstrates a material change in country con-
ditions that would justify reopening, [the BIA] compare[s] the
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4 Opinion of the Court 21-11040
evidence of country conditions submitted with the motion to those
that existed at the time of the merits hearing below.”) While Fer-
nandez in his second motion to reopen provided the State Depart-
ment’s 2018 Human Rights Report for Cuba, which detailed repres-
sion of political dissidents, the report did not indicate whether re-
pression had increased in severity or was constant in comparison
to any previous period.
Id. at 257 (“A new report or a new law is
not evidence of changed conditions without convincing evidence
the prior version of the law was different, or was differently en-
forced, in some relevant and material way.”). Thus, the BIA did not
abuse its discretion in requiring Fernandez to provide evidence of
a change in circumstances in Cuba between the date of Fernandez’s
merits hearing and motion to reopen, as it followed its own prece-
dent in
Matter of S-Y-G-.
See Ferreira v. U.S. Att’y Gen., 714 F.3d
1240, 1243 (11th Cir. 2013) (“The BIA abuses its discretion when it
misapplies the law in reaching its decision” or when it fails to follow
“its own precedents without providing a reasoned explanation for
doing so.”).
While Fernandez contends the Decree Law and related
news articles demonstrated a material change in circumstances and
the BIA mischaracterized the Decree Law as having been passed in
1976, the translation of the law appeared to indicate it had been
implemented in 1976. Even if the Decree Law is understood to
have been passed in 2012, the text of the law does not indicate
whether the provision stating that a Cuban national who leaves the
country for two or more years is considered to have emigrated was
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21-11040 Opinion of the Court 5
a change from the original 1976 law or a subsequent version of the
law.
See Matter of S-Y-G-, 24 I. & N. Dec. at 257. Moreover, the
related news articles did not specify that the treatment of Cuban
deportees from the United States had changed since 2012. Thus,
Fernandez failed to provide evidence of a change in country condi-
tions that showed more than a continuation or incremental change
in country conditions.
Id. (“Change that is incremental or inci-
dental does not meet the regulatory requirements for late motions
[to reopen]”.).
Additionally, Fernandez’s involvement in supporting Cuban
political dissidents in the United States constituted a change in per-
sonal circumstances, rather than a material change in circum-
stances in Cuba.
See Chen v. U.S. Att’y Gen., 565 F.3d 805, 809–10
(11th Cir. 2009) (stating an alien cannot circumvent the require-
ment of changed country conditions by demonstrating only a
change in his personal circumstances). We held the petitioner’s
birth of her two children constituted a change in circumstances in
China, rather than primarily a change in personal circumstances,
when she provided evidence of an increased local enforcement of
China’s one-child policy through increased forced sterilization.
Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1320 (11th Cir. 2009). By
contrast, we held a petitioner, who had testified against a Jamaican
gang kingpin that had been in power since at least the 1990s, only
demonstrated a change in personal circumstances “because he tes-
tified, not because Jamaica became more hostile to informants
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6 Opinion of the Court 21-11040
between 2009 and 2019.”
Blake v. U.S. Att’y Gen., 945 F.3d 1175,
1179 (11th Cir. 2019).
Like
Blake, Fernandez’s involvement in Jose Queipo’s or-
ganization helping Cuban dissidents fleeing to the United States
was a change in personal circumstances because he was at risk for
supporting Cuban political dissidents, not because Cuba became
more hostile to supporters of political dissidents.
Id. And unlike
Zhang, Fernandez did not provide evidence of an accompanying
change in Cuba’s repressive practices against political dissidents
and their supporters.
Zhang, 572 F.3d at 1320. Fernandez’s in-
volvement in supporting Cuban political dissidents did not repre-
sent a material change in circumstances in Cuba but a change in
personal circumstances.
Chen, 565 F.3d at 809-10. Accordingly,
the BIA did not abuse its discretion in denying Fernandez’s second
motion to reopen.
PETITION DENIED.
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