United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 22, 2005
Charles R. Fulbruge III
Clerk
No. 04-60604
Summary Calendar
PATRICIA BRIGIDA DIAZ; SERGIO GERMAN DELGADO DIAZ;
DIEGO FERNANDO DELGADO DIAZ,
Petitioners,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
(BIA No. A79 477 815)
(BIA No. A79 477 816)
(BIA No. A79 477 817)
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Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Petitioner Patricia Brigida Diaz and her two minor sons,
Sergio German Delgado Diaz and Diego Fernando Delgado Diaz
(collectively, the Diazes), petition this court for review of the
Board of Immigration Appeals’ (“BIA”) decision denying their motion
for reconsideration of the BIA’s dismissal of their appeal from the
Immigration Judge’s (“IJ”) denial of their applications for asylum,
withholding of removal, and relief under the Convention Against
*
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this opinion should not be published and is not precedent except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.
Torture. The Diazes filed their petition for review within 30 days
after the BIA’s final order denying their motion to reconsider.
The Diazes did not, however, file a petition for review within 30
days after the BIA originally dismissed their appeal. As the
requirement of a timely filed petition for review is
jurisdictional, we have no jurisdiction to review that earlier
decision. See 8 U.S.C. § 1252(a)(1), (b)(1) (2000);
Karimian-Kaklaki v. INS, 997 F.2d 108, 111 (5th Cir. 1993).
Rather than address the BIA’s denial of reconsideration of its
earlier affirmance of the IJ’s ruling, the Diazes assert that the
IJ’s credibility determinations were clearly erroneous and that the
evidence clearly showed a well-founded fear of future persecution
based on membership in a social group. Their failure to brief or
argue this alleged error constitutes waiver. See Rodriguez v. INS,
9 F.3d 408, 414 n.15 (5th Cir. 1993)(“grounds for reversal not set
forth in a petitioner’s (or appellant’s) opening brief in this
Court are normally waived”). As the Diazes’ motion for
reconsideration failed to identify any change in the law,
misapplication of the law, or aspect of the case that the BIA
overlooked, they cannot prevail. See Zhao v. Gonzales, 404 F.3d
295, 301 (5th Cir. 2005).
Even if the Diazes’ motion is interpreted as arguing that the
BIA’s denial of reconsideration was legally or factually erroneous,
however, they have not shown an abuse of discretion. See Lara v.
Trominski, 216 F.3d 487, 497 (5th Cir. 2000); Osuchukwu v. INS, 744
2
F.2d 1136, 1141-42 (5th Cir. 1984). The decisions of the BIA and
the IJ rested on credibility determinations, and the Diazes have
failed to show that the record compels a conclusion that the
credibility determinations at issue must be overturned. See Chun
v. INS, 40 F.3d 76, 78 (5th Cir. 1994).
The Diazes’ petition for review is therefore DENIED, as is
their motion for stay of deportation.
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