[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-12818 JAN 19, 2010
Non-Argument Calendar JOHN LEY
________________________ ACTING CLERK
Agency No. A095-255-587
VIVIAN LADY MANZANO-FERNANDEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 19, 2010)
Before BARKETT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Vivian Lady Manzano Fernandez, proceeding pro se, seeks review of the
Board of Immigration Appeal’s (“BIA’s”) denial of her motion for reconsideration
of her motion to reopen her asylum case. Fernandez argues that she is entitled to
relief because the Immigration Judge (“IJ”) and BIA violated Fernandez’s due
process rights when “they did not follow applicable regulations.” After careful
review, we deny her petition in part, and dismiss it in part.1
We review the BIA’s denial of a motion to reconsider for abuse of
discretion. Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). Our
review is limited to determining “whether there has been an exercise of
administrative discretion and whether the matter of exercise has been arbitrary or
capricious.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005)
(quotation omitted). A motion for reconsideration “shall specify the errors of law
or fact in the previous order and shall be supported by pertinent authority.” 8
U.S.C. § 1229a(c)(6)(C); see also 8 C.F.R. § 1003.2(b)(1). Further, “we are
divested of jurisdiction to consider a claim that was not presented to the
immigration courts, as an alien must exhaust the administrative remedies available
to [her] prior to obtaining judicial review.” Al Najjar v. Ashcroft, 257 F.3d 1262,
1285 n.14 (11th Cir. 2001) (internal quotation omitted).
1
We note that only the BIA’s order denying Fernandez’s motion to reconsider is before
us because Fernandez did not petition us to review the BIA’s other decisions, and she is now
precluded from raising any claims related to those decisions. 8 U.S.C. § 1252(b)(1) (providing
that an alien has 30 days to file a petition for review); Dakane v. U.S. Att’y Gen., 371 F.3d 771,
773 n.3 (11th Cir. 2004) (holding that the statutory time limit for filing a petition for review is
“mandatory and jurisdictional” and, therefore, not subject to equitable tolling).
2
First, we are unpersuaded that Fernandez is entitled to relief based on her
argument, raised before the BIA in her motion to reconsider, that the IJ erred by
finding that, because she was married to a Mexican national, Mexico constituted a
third safe country. Indeed, the BIA did not abuse its discretion in denying her
motion to reconsider based on this argument because it does not relate to any
alleged mistake of law or fact that the BIA made in denying her motion to reopen.
8 U.S.C. § 1229a(c)(6)(C); see also 8 C.F.R. § 1003.2(b)(1). Rather, her motion to
reopen focused on the facts that her husband was currently pursuing cancellation of
removal, that she would derive immigration benefits if he obtained relief, and that
her United States citizen daughter would suffer extreme hardship if Fernandez was
removed to Colombia. Thus, the BIA correctly determined that the argument in
her motion to reconsider regarding a safe third country did not relate to any alleged
error that the BIA made in denying her motion to reopen. Accordingly, we deny
Fernandez’s petition based on this claim.
Fernandez’s remaining arguments -- that her due process rights were
violated because she was denied a full and fair asylum hearing, that she was
“forced” to request voluntary departure, and that her deportation order resulted in a
“gross miscarriage of justice” -- were not presented to the BIA in her motion to
reconsider. Therefore, she did not exhaust her administrative remedies with regard
to these claims and we are divested of jurisdiction to consider them. Al Najjar, 257
3
F.3d at 1285 n.14. Accordingly, we dismiss Fernandez’s appeal regarding these
claims.
Finally, Fernandez has abandoned any other arguments relating to the BIA’s
denial of her motion to reconsider because she failed to raise them on appeal.
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005)
(concluding a petitioner abandoned his issue by failing to raise it in his opening
brief). Therefore, we deny Fernandez’s petition in part, and dismiss it in part.
PETITION DENIED in part, DISMISSED in part.
4