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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10243
Non-Argument Calendar
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Agency No. A024-437-582
RAIMUNDO DIAZ MARTINEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 30, 2013)
Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.
PER CURIAM:
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Raimundo Diaz Martinez seeks review of the Board of Immigration
Appeals’s (“BIA”) denial of his motion to reopen his removal proceedings. In the
initial proceedings, the Immigration Judge (“IJ”) ordered Martinez removable
based on his status as an aggravated felon and drug offender. Martinez conceded
removability at a master hearing, but said that he intended to seek a waiver under a
former statutory section (8 U.S.C. § 1182(c)), and to apply for deferral of removal
under the United Nations Convention Against Torture and Other Cruel, Inhuman
and Degrading Treatment or Punishment (“CAT”). In February 2011, the IJ ruled
that Martinez had abandoned his claims because he did not timely file an
application for relief or for an extension of time, and the IJ ordered him removed to
Cuba. Thereafter, Martinez filed a motion to reopen his removal proceedings,
relying on new evidence that his medical and financial conditions prevented him
from applying for relief on time. The IJ denied Martinez’s motion on the basis that
his medical and financial conditions were never raised at the initial hearing or prior
to the deadline. On appeal, the BIA concluded that Martinez’s evidence was not
previously unavailable, dismissed the appeal, and denied his subsequent motion for
reconsideration. In this appeal, Martinez argues that the BIA abused its discretion
in denying his motion to reopen. After careful review, we deny the petition.
We review our subject matter jurisdiction de novo. Amaya-Artunduaga v.
U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We review the BIA’s
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denial of a motion to reconsider for abuse of discretion. Calle v. U.S. Att’y Gen.,
504 F.3d 1324, 1328 (11th Cir. 2007). The BIA abuses its discretion when its
decision is arbitrary or capricious. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256
(11th Cir. 2009). We review constitutional challenges de novo. Ali v. U.S. Att’y
Gen., 443 F.3d 804, 808 (11th Cir. 2006).
“Due process requires that aliens be given notice and an opportunity to be
heard in their removal proceedings.” Tang v. U.S. Att’y Gen., 578 F.3d 1270,
1275 (11th Cir. 2009) (quotation omitted). To establish a due process violation, a
petitioner must show that he was deprived of liberty without due process of law
and that the purported errors caused him substantial prejudice. Id. Under the
regulations, however, the IJ has authority to set and extend time limits for the filing
of applications and related documents. Tang, 578 F.3d at 1276; 8 C.F.R. §
1003.31(c). If an application or document is not filed within the time set by the IJ,
the opportunity to make that filing is deemed waived. Tang, 578 F.3d at 1276; 8
C.F.R. § 1003.31(c). There is no constitutionally protected liberty interest in the
admission of evidence after the court-ordered deadline. Tang, 578 F.3d at 1276.
As a result, the IJ’s decision to exclude an untimely submission does not violate
due process. Id.
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A motion to reconsider must identify specific errors of fact or law in the
BIA’s prior decision. 8 C.F.R. § 1003.2(b)(1). The motion must do more than
simply repeat arguments already rejected by the BIA. Calle, 504 F.3d at 1329.
In this case, because Martinez has not timely filed a petition for review from
the underlying order of removal, we only have jurisdiction to review Martinez’s
arguments addressing the BIA’s denial of his motion for reconsideration. See
Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2004). For starters,
as for his arguments regarding his new medical and financial evidence as well as
prior unpublished decisions of the BIA, Martinez previously raised these
arguments in his appeal from the IJ’s denial of his motion to reopen. The BIA
considered these arguments and rejected them. Thus, these are not proper bases for
Martinez to base his motion for reconsideration upon. See Calle, 504 F.3d at 1329.
Although Martinez claims that the BIA failed to consider his affidavit and
evidence in denying his motion to reopen, the BIA specifically discussed his
evidence in its opinion.
Further, the BIA did not abuse its discretion in denying Martinez’s motion
for reconsideration. As for Martinez’s assertion that he was entitled to review by a
three-member panel of the BIA, Martinez has not contested any factual
determination and he conceded that his application for relief was untimely. See 8
C.F.R. 1003.1(e)(6) (explaining that a case may only be assigned for review by a
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three-member panel if there is a need to review a decision that is not in conformity
with the law or to review a clearly erroneous factual determination). Thus, because
the IJ complied with the applicable precedent controlling deadlines and there is no
factual determination that needs to be reviewed, the case was not proper for a
three-member panel. Finally, as for Martinez’s due process claim, he had no
constitutionally protected liberty interest in the untimely admission of his
application for relief. See Tang, 578 F.3d at 1276. Accordingly, we deny
Martinez’s petition.
PETITION DENIED.
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