John Rodriguez v. Eric Holder, Jr.

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UNPUBLISHED OPINION FILED. [10-60203 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 01/14/2011; denying motion to supplement the record on appeal filed by Petitioner Mr. John Alexander Rodriguez [6666897-2]; denying motion to consolidate cases filed by Petitioner Mr. John Alexander Rodriguez [6666897-3] [10-60203]

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John Rodriguez v. Eric Holder, Jr. Case: 10-60203 Document: 00511302125 Page: 1 Date Filed: 11/23/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-60203 S u m m a r y Calendar November 23, 2010 Lyle W. Cayce Clerk J O H N ALEXANDER RODRIGUEZ, also known as John Alexander RodriguezB u rg os, P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R espon dent P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A094 917 563 B e fo r e DAVIS, SMITH and SOUTHWICK, Circuit Judges. P E R CURIAM:* J o h n Alexander Rodriguez, a native and citizen of Colombia, petitions for r e v ie w of the decision of the Board of Immigration Appeals (BIA) denying his m o t io n to reopen his removal proceedings. Rodriguez moves to supplement the r e c o r d with updated documents. He also moves to consolidate this petition for r e v ie w with a prior petition for review. These motions are denied. Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Dockets.Justia.com Case: 10-60203 Document: 00511302125 Page: 2 Date Filed: 11/23/2010 No. 10-60203 R o d r ig u e z argues that the BIA should have reopened his removal p r o c e e d i n g s based on information that, after Rodriguez was ordered removed, h is parents' house in Colombia was firebombed by terrorists. He also argues t h a t he submitted evidence of changed country conditions that warranted the r e o p e n in g of his proceedings. A motion to reopen should be based on new facts and must establish a p r im a facie case of eligibility for the underlying relief sought in order to be g r a n t e d . See 8 C.F.R. 1003.2(c); INS v. Abudu, 485 U.S. 94, 104 (1988). "In d e t e r m in in g whether evidence accompanying a motion to reopen demonstrates a material change in country conditions that would justify reopening, [the BIA] c o m p a r e [s ] the evidence of country conditions submitted with the motion to those t h a t existed at the time of the merits hearing below." In re S-Y-G, 24 I. & N. Dec. 247, 253 (BIA 2007). The evidence submitted by Rodriguez did not show a c h a n g e in conditions in Colombia since the time of his removal proceedings. Rather, it showed that any individual in Colombia could be kidnapped at any t im e for purposes of extortion or for use in trades for political prisoners. Nothing in the evidence submitted by Rodriguez established a prima facie eligibility for a s y lu m or withholding of removal. See 1003.2(c); Abudu, 485 U.S. at 104. T h e BIA's denial of Rodriguez's motion to reopen was rational and founded in the evidence submitted in support of that motion. Accordingly, that denial w a s not an abuse of discretion. See Manzano-Garcia v. Gonzales, 413 F.3d 462, 4 6 9 (5th Cir. 2005). The BIA also held that, to the extent that Rodriguez's m o t io n to reopen could be construed as a motion for reconsideration, the motion w a s untimely and lacked merit. Rodriguez has clarified in this court that he was s e e k in g only to reopen his removal proceedings and that he was not seeking r e c o n s id e r a tio n of the BIA's order of removal. R o d r ig u e z 's petition for review is DENIED. 2

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