[DO NOT PUBLISH]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.
4