Jaime Roberto Osorio v. U.S. Atty. Gen.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-16334 JULY 8, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK

BIA Nos. A79-474-393 & A79-474-394

JAIME ROBERTO OSORIO,
CLARA PATRICIA SANCHEZ, et al.,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

__________________________

Petition for Review from an Order of the
Board of Immigration Appeals
_________________________

(July 8, 2005)

Before BIRCH, HULL and WILSON, Circuit Judges.

PER CURIAM:
Jaime Roberto Osorio (“Jaime”), his wife Clara Patricia Sanchez (“Clara”),

and their daughter Mayra Alejandra Osorio (“Mayra”) (collectively,

“Petititoners”), seek review of the Bureau of Immigration Appeals’ (“BIA”) order

denying their motion to reconsider the BIA’s affirmation of the Immigration

Judge’s (“IJ”) order of removal. Because the Petitioners’ removal proceedings

commenced after 1 April 1997, the permanent rules of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat.

3009 (1996) (“IIRIRA”), apply. The BIA did not abuse its discretion in denying

the Petitioners’ motion to reconsider because they failed to argue the appropriate

grounds for such relief. Therefore, we DENY the petition for review.

I. BACKGROUND

The Petitioners are natives and citizens of Colombia who were admitted to

the United States as non-immigrant visitors. Jaime was admitted on 6 August

2000 and authorized to stay until 30 June 2001, and Clara and Mayra were

admitted on 28 November 2000 and authorized to stay until 27 May 2001. They

remained in the United States beyond these dates and on 28 September 2001 were

issued Notices to Appear by the Immigration and Naturalization Service (“INS”)1

1
On 25 November 2002, President Bush signed into law the Homeland Security Act of 2002
(“HSA”), Pub. L. No. 107-296, 116 Stat. 2135. The HSA created a new Department of Homeland
Security (“DHS”), abolished the INS, and transferred its functions to the new department. However,

2
charging them with removability under Immigration and Naturalization Act

(“INA”) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as aliens who remained in the

United States for a time longer than permitted.

On 9 October 2001, Jaime filed an application for asylum, withholding of

removal, and United Nations Convention Against Torture and Other Cruel,

Inhuman, or Degrading Treatment or Punishment (“CAT”) relief on behalf of

himself and his family. In his application, he alleged that he was offered

employment by the National Liberation Army (“ELN”) due to his expertise and

knowledge of computers. According to Jaime, the ELN threatened him and his

family when he refused the offer of employment, and he was kidnaped by the ELN

but released on his promise to return and accept the job. After a hearing on the

merits, the IJ denied the application for asylum, withholding of removal, and CAT

relief. The IJ found that Jaime (1) had not shown a well-founded fear of

persecution on a protected ground because the ELN attempted to recruit him due

to his knowledge, not his political views, and “[r]ecruitment of an individual by a

guerilla organization is not, in and of itself, persecution on account of a political

because this case was initiated while the INS was still in existence, this memorandum refers to the
agency as the “INS” rather than the “DHS.”

3
opinion,” Administrative Record “AR” at 73-74, (2) lacked credibility, and

(3) could relocate to another area of Colombia without fear.

The Petitioners appealed the IJ’s decision and argued that: (1) portions of

the decision were “totally outside of the parameters of the U.S. Supreme Court

(Cardoza-Fonseca2) case decision and the B.I.A. (Mogharrabi3) [c]ase concept of

the ‘reasonable person,’” AR at 18; (2) the decision was “not within the letter nor

the spirit of the Refugee Act of 1980,” id.; and (3) the IJ ignored (a) the fact that

Petitioners were “chosen political targets,” id. at 20, and (b) the current country

conditions, which has led to “a civil war,” id. at 22. On 18 May 2004, the BIA

affirmed the IJ’s decision without opinion, pursuant to 8 C.F.R. § 1003.1(e)(4).

On 14 June 2004, the Petitioners filed a timely motion for reconsideration of

the BIA’s decision. They argued that: (1) portions of the IJ’s decision were

“totally outside of the parameters set forth in the Supreme Court case decision of

Cardoza-Fonseca and the B.I.A. case of Mogharrabi, where the concept of the

‘reasonable person’ is fully explained,” id. at 6; (2) the decision was “not within

the letter, nor the spirit of the Refugee Act of 1980,” id.; and (3) the IJ “did not

give any weight to the persecution [they] endured in Colombia” or consider

2
INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S. Ct. 1207 (1987).
3
Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).

4
current country conditions, which has led to “a civil war,” id. at 8. The Petitioners

asserted that they were entitled to asylum, withholding of removal, and CAT relief

because they had “a well-founded fear of persecution based on [their] experienced

persecution” and “would be killed” if they returned to Colombia. Id. at 7. The

BIA denied the Petitioners’ motion for reconsideration based on its finding that

they had “failed to specify any particular errors of fact or law in the prior Board

decision” but merely reiterated, “in conclusory fashion,” the arguments they made

on appeal. Id. at 2. The BIA stated that it had considered those arguments before

reaching a decision and would not revisit them. Id. This timely petition for

review of the BIA’s denial of the motion for reconsideration followed. The

Petitioners did not file a petition for review of the BIA’s final order of removal.

II. DISCUSSION

The Petitioners argue that, in their motion for reconsideration of the BIA’s

final order of removal, they listed the reasons for reconsideration and specified the

particular errors of fact and law, including the IJ’s failure to apply the “reasonable

person” concept to define “well-founded fear of future persecution,” and the BIA’s

failure to consider that Jaime “was persecuted, threatened, and kidnaped by the

ELN guerillas.” Appellant’s Brief at 5, 6. The government responds that the

Petitioners’ motion for reconsideration merely reiterated the arguments raised in

5
their brief in support of their appeal, which arguments the BIA already had

considered and rejected. Thus, the government argues, the Petitioners’ motion did

not satisfy the standard for reconsideration, as it did not specify any errors of law

or fact in the BIA’s prior decision or identify any legal argument or aspect of the

case that had been overlooked.

We review the BIA’s denial of a motion to reconsider for an abuse of

discretion. Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003).

Motions to reconsider are disfavored in removal proceedings. See Immigration

and Naturalization Serv. v. Doherty, 502 U.S. 314, 323, 112 S. Ct. 719 (1992)

(discussing motions to reopen and explaining that such motions are disfavored

because “as a general matter, every delay works to the advantage of the deportable

alien who wishes merely to remain in the United States”). A motion to reconsider

must specify “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).

In this case, the BIA correctly found that the Petitioners’ motion to

reconsider failed to specify any error of law or fact in the BIA’s prior decision, but

merely reiterated arguments that were considered and rejected on appeal from the

IJ’s order denying their application for asylum, withholding of removal, and CAT

6
relief. Accordingly, the BIA did not abuse its discretion in denying the motion to

reconsider.

III. CONCLUSION

The BIA properly denied the Petitioners’ motion to reconsider the BIA’s

affirmation of the IJ’s order of removal because it only reiterated arguments that

were advanced and rejected on appeal of the IJ’s order denying Petitioner’s

application for withholding of removal and CAT relief.

Accordingly, the petition for review is DENIED.