Maria Ilda Medina v. Attorney General of the United States

Ms. Medina is referred to as “Maria Medina” in the caption of her Brief, but the caption1
of the government’s Brief refers to her as “Maria Medina Restrepo,” and the government refers
to her as: “Restrepo” throughout its Brief. We will use “Medina” as that is consistent with the
caption on her brief and the docket sheet.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3405
MARIA ILDA MEDINA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order of the Board of Immigration Appeals
(No. A79-453-684)
Before: McKEE, HARDIMAN and GREENBERG, Circuit Judges.
Submitted pursuant to Third Circuit LAR 34.1(a)
June 2, 2009
(Opinion Filed: July 15, 2009)
OPINION
McKEE, Circuit Judge
Maria Ilda Medina petitions for review of a decision of the Board of Immigration1
Appeals denying her motion to reopen her removal proceedings. For the reasons below,
we will deny the petition for review.

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I.
As we write primarily for the parties who are familiar with the facts of this case,
we need not recite the factual or procedural history in detail.
In her brief, Medina goes to considerable lengths to argue the merits of her claim
for asylum, withholding of removal, and protection under the Convention Against
Torture. However, as she failed to file a timely petition for review of the Board’s 2007
order affirming the IJ’s removal decision, we have no jurisdiction to address the merits of
those claims. See 8 U.S.C. § 1252(b)(1) (petition to review a final order of the Board
must be filed within 30 days of the date of the order). Accordingly, our review is limited
to the Board’s denial of her motion to reopen her removal proceedings.
We review the Board’s decision to deny a motion to reopen only for an abuse of
the Board’s broad discretion to reopen removal proceedings. INS v. Doherty, 502 U.S.
314, 323 (1992); Korytnyuk v. Ashcroft, 396 F.3d 272, 293 (3d Cir. 2005). Medina
attempted to have the Board reopen removal hearings based on “newly discovered
evidence.” She claims that the Board should have reopened her removal hearings based
on evidence that her brother had been slain by the Revolutionary Armed Forces of
Columbia (“FARC”) or the National Liberation Army (“ELN”). Both organizations are
terrorist groups operating with apparent impunity in parts of Columbia, and Medina’s
claim for relief from removal was based upon her contention that those groups were
“persecuting” her in retaliation for her political activity in Columbia. According to

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Medina, evidence of her brother’s death corroborated her claim for refugee status and for
relief under the CAT. Since she could not have produced evidence of her brother’s
slaying until after the IJ denied her claim, Medina claims that she can now establish a
prima facie claim of eligibility for relief and that the BIA therefore abused its discretion
in denying her motion to reopen. See INS v. Abudu, 485 U.S. 94, 110 (1988).
II.
The IJ denied Medina’s claim for asylum and withholding of removal because the
evidence she submitted did not establish that the actions she complained of at the hands
of the FARC or ELN were in retaliation of her political activities. Absent that nexus, she
could not establish that she was a “refugee” and was therefore not entitled to relief from
removal. Relief under the CAT need not be premised on any political activity, or status.
However, the IJ concluded that the abuse and threats she complained of did not rise to the
level required for “torture” under the CAT.
Although her brother’s murder is certainly tragic, evidence that he was killed by
FARC or the ELN suffers the very same legal infirmity that was fatal to her original claim
for relief. There is nothing on this record to support a finding that the illegal actions she
relies upon were related to any protected status or activity. They therefore do not amount
to “persecution” as that term is used in immigration law. See Sioe Tjen Wong v. Atty.
Gen., 539 F.3d 225 (3d Cir. 2008). Rather, the record establishes that Medina (and
probably her brother) were the victims of the kind of broad violent extortion that FARC is

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well known for. Although her treatment was most certainly “unfair, unjust, [and]
unlawful. . .,” this does not mean that it was “persecution.” Id. at 232.
Similarly, the Board did not abuse its discretion by concluding that evidence of
Medina’s brother’s murder did not establish that she would be “tortured,” as defined
under the CAT, if she returned to Columbia and one of the groups there attempted to
extort payments from her. See Pierre v. Atty. Gen., 528 F.3d 180 (3d Cir. 2009) (en banc);
and Borges v. Gonzales, 402 F3d. 398, 404 (3d Cir. 2005).
III.
Finally, Medina argues that the Board’s denial of her motion to reopen violated her
constitutional right to due process. Although we are not unsympathetic to Ms. Medina’s
plight, this argument is frivolous. There is no constitutional right to have removal
proceedings reopened. Ms. Medina had a removal hearing and she appealed the result of
that hearing to the Board. She chose not to petition this court for review of the Board’s
order affirming the result of the removal hearing. Thereafter, she asked the Board to
reopen her removal hearing and the Board denied that request because the “newly
discovered” evidence she was relying upon still did not entitle her to the relief she was
seeking. Ms. Medina has been afforded all of the process that she is entitled to. The
Board properly exercised its discretion and refused to reopen removal hearings because it
is clear that, despite her tragic circumstances, she has not established that she is entitled to
“refugee” status or relief under the CAT. Accordingly, we hold that the Board did not

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abuse its discretion in denying her petition to reopen, and we will therefore deny her
petition for review.

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