[DO NOT PUBLISH]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
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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,
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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.”
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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).
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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
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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
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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.
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