Raiza Coromoto Nieves v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13291 ELEVENTH CIRCUIT
JANUARY 15, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK

Agency Nos. A098-320-461, A098-320-462

RAIZA COROMOTO NIEVES,
OSWALDO IBRAHIN HURTADO,
BERIOZKA M. HURTADO,
LIUBOV N. HURTADO,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(January 15, 2010)

Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:
Raiza Coromoto Nieves1 petitions this court for review of the Board of

Immigration Appeals’ (“BIA”) denial of her motion to reconsider. Upon review,

we conclude Nieves abandoned her argument by failing to raise the issue in her

appellate brief. Accordingly, we deny the petition.

Nieves, a native and citizen of Venezuela, entered the United States in 2002.

In 2004, she filed an application for asylum, withholding of removal, and CAT

relief, alleging she was persecuted on account of her participation in the

Democratic Action Party. She further alleged that she had been kidnaped and

beaten by members of Venezuelan President Chavez’s regime. After a hearing, the

Immigration Judge (“IJ”) denied relief, finding that the asylum application was

untimely and that Nieves was not entitled to withholding of removal or CAT relief.

Nieves appealed to the BIA, arguing that the IJ erred in finding her application was

untimely and that her credible testimony established past persecution. The BIA

adopted the IJ’s decision and dismissed the appeal.

Instead of filing a petition for review in this court, Nieves filed a motion to

reconsider. In her motion, Nieves asserted that the IJ erred in finding the

application was untimely. She further reiterated that she established past

persecution based on her credible testimony and that she had a well-founded fear

1
Nieves family members Oswaldo Ibrahim Hurtado, Beriozka M. Hurtado, and Liubov N.
Hurtado proceeded as derivative beneficiaries on her application.
2
of future persecution. The BIA denied the motion. This petition for review

followed.2

“We review the BIA’s 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). If a

petitioner does not raise an argument in an opening brief before us, the argument is

considered abandoned. Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1226

n.1 (11th Cir. 2008). We have observed that a “general reference” to a BIA action

will not suffice to preserve an issue for appeal. Yu v. U.S. Att’y Gen., 568 F.3d

1328, 1330 n.1 (11th Cir. 2009).

“A motion to reconsider shall state the reasons for the motion by specifying

the errors of fact or law in the prior [BIA] decision and shall be supported by

pertinent authority.” 8 C.F.R. § 1003.2(b)(1); see also 8 U.S.C. § 1229a(c)(6)(C).

A motion to reconsider that merely restates arguments that the BIA previously

rejected provides no reason for the BIA to change its prior decision. Calle, 504

F.3d at 1329. “Therefore, merely reiterating arguments previously presented to the

BIA does not constitute ‘specifying . . . errors of fact or law’ as required for a

successful motion to reconsider.” Id. (quoting 8 C.F.R. § 1003.2(b)(1)).

2
Because Nieves did not file a petition for review within thirty days of the BIA’s
affirmance of the IJ’s removal order, the merits of the underlying order of removal are not
properly before us. 8 U.S.C. § 1252(b)(1). Our review is limited to the BIA’s denial of the
motion for reconsideration. 8 C.F.R. § 1003.2(b)(2).
3
In her opening brief, Nieves argues the merits of her asylum and withholding

claims and makes only a passing reference to the denial of the motion for

reconsideration. Because Nieves has not raised a substantive argument regarding

the BIA’s denial of her motion to reconsider, she has abandoned any argument that

the BIA erred. To the extent that she raises arguments on appeal that she raised in

her motion to reconsider, those arguments merely reiterated issues that the BIA

already had considered and rejected. Accordingly, the BIA did not abuse its

discretion in denying her motion to reconsider.

PETITION DENIED.