[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 14, 2006
No. 06-13019 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A96-284-285
A96-284-286
GUSTAVO ALBERTO RAMIREZ,
SORAYA PALACIO,
VALENTINA RAMIREZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 14, 2006)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
The Petitioner Gustavo Alberto Ramirez is a citizen of Columbia, S.A. He
seeks review in this court of the Board of Immigration Appeals’s (BIA’s) decision
to deny a motion to reconsider its prior order dismissing their administrative appeal
of a removal order as abandoned.1
After an immigration judge (IJ) denied his application for asylum,
withholding of removal, and relief under the U.S. Convention Against Torture,
Petitioner filed a timely appeal to the BIA on August 9, 2004, claiming that the IJ
acted contrary to law and did not properly consider evidence of the current
conditions in Colombia and his status as a “political target.” On January 17, 2006,
the BIA dismissed the appeal as moot. The Board ruled that it was treating the
appeal as abandoned since it had been unable to contact Petitioner by mail and they
had not filed a change of address notification.
Petitioner filed a timely motion to reconsider and stay deportation. On April
28, 2006, the BIA denied his motion, noting that Petitioner had abandoned his
appeal by not responding or filing a change of address form prior to the BIA’s first
decision. The BIA denied the motion to reconsider because the motion merely
reargued the merits of his claim, rather than challenging the BIA decision to
1
Petitioner seeks review on behalf of himself, his wife, Soraya Palacio, and their child,
Valentina Ramirez, who are also citizens of Columbia, S.A. For ease of discussion, we refer
only to Petitioner Ramirez.
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dismiss his appeal. Thus, Petitioner did not allege any errors of fact or law or
authority requiring the court to reinstate his appeal. Petitioner, on May 26, 2006,
then petitioned this court to review the BIA’s decisions and the IJ’s decision. In
response, the Government argues that we does not have jurisdiction to review the
denial of asylum, withholding of removal, and CAT relief.
We review “questions of subject matter jurisdiction de novo.” Brooks v.
Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002). We have jurisdiction over a “final
order of removal,” so long as the petition for review is filed within 30 days. 8
U.S.C. § 1252(a)(1), (b)(1). The time for filing his petition for review is not tolled
pending the resolution of a timely motion to reconsider. In Stone v. INS, the
Supreme Court concluded that “deportation orders are to be reviewed in a timely
fashion after issuance, irrespective of the later filing of a motion to reopen or
reconsider,” and “the filing of the reconsideration motion does not toll the time to
petition to review.” 514 U.S. 386, 394-95, 115 S.Ct. 1537, 1543-44, 131 L.Ed.2d
465 (1995). We recently applied Stone and noted that, because “the statutory limit
for filing a petition for review in an immigration proceeding is ‘mandatory and
jurisdictional,’ it is not subject to equitable tolling” based on the timely filing of a
motion to reopen. Dakane v. U.S. Attorney Gen., 399 F.3d 1269, 1272 n.3 (11th
Cir. 2005).
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The BIA affirmed the decision of the IJ and issued a final order of removal
on January 17, 2006. Because Petitioner did not file his petition for review until
May 26, 2006, more than 30 days later, his petition was not timely to consider the
merits of his case. Thus, because he failed to file a petition for review within 30
days of the BIA’s first order, we lack jurisdiction to review any issues resulting
from alleged errors in that order. However, because the BIA’s denial of his
motion to reconsider is a separate final order, and the petition for review was filed
within 30 days of that order, we have jurisdiction to review the BIA’s second
order.
Petitioner believes that the BIA abused its discretion by denying his motion
to reconsider because he has established eligibility for asylum and a well founded
fear of persecution under the CAT. He does not raise any arguments regarding the
denial of his motion to reconsider. The Government states that because he does
not assert any source of error in the BIA’s denial of his motion to reconsider, he
has abandoned that issue.
We review the Board’s denial of a motion to reconsider for an abuse of
discretion. Assa’ad v. U.S. Attorney General, 332 F.3d 1321, 1341 (11th Cir.
2003). “A motion to reconsider shall specify errors of fact or law in the prior
Board decision and shall be supported by pertinent authority.” 8 C.F.R
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§ 1003.2(b)(1).
The BIA noted, in denying the motion to reconsider, that Petitioner did not
allege any errors in the its decision to dismiss his appeal as abandoned. Instead, he
reasserted his arguments for asylum, withholding of removal, and protection under
the CAT that had been presented before the IJ and in his initial request for appeal
to the BIA. He did not provide any explanation for his failure to notify the BIA of
his change of address or unresponsiveness to the briefing schedule. A review of
the record shows that the BIA’s assessment is correct. Under these circumstances,
the BIA did not abuse its discretion when it denied the motion to reconsider.
To the extent Petitioner challenges the underlying removal order, we lack
jurisdiction and dismiss the petition. The petition is otherwise denied because he
fails to raise any claims regarding the denial of his reconsideration motion and has
abandoned the issue. Accordingly, this petition is,
DENIED, in part; DISMISSED, in part.
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