[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-12957 OCT 24, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
Agency Nos. A96-104-816
A96-104-967
OMAR JESUS RUIZ,
AMANDA OFELIA HIDALGO,
JOHN MAURICIO RUIZ,
NAYIBI RUIZ,
PAULA ANDREA RUIZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 24, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
The lead petitioner, Omar Jesus Rui, and his wife, Amanda Ofelia Hidalgo,
and three children, petition this Court for review of (1) the final decision of the
Board of Immigration Appeals (“BIA”) which adopted and affirmed the
Immigration Judge’s (“IJ’s”) denial of asylum and withholding of removal under
the Immigration and Nationality Act (“INA”) and relief under the United Nations
Convention Against Torture (“CAT); and (2) the BIA’s order denying Ruiz’s
motion to reopen and reconsider. On appeal, Ruiz argues that he demonstrated
past persecution by the Revolutionary Armed Forces of Colombia on account of
his political opinion and a well-founded fear of future persecution. Because Ruiz
failed to file a timely appeal from the former order, we lack jurisdiction over his
petition as to the underlying BIA order. We deny the petition as to the motion to
reopen and reconsider.
We review subject matter jurisdiction de novo. Ortega v. U.S. Att’y Gen.,
416 F.3d 1348, 1350 (11th Cir. 2005). By statute, an alien seeking review of a
final order of the BIA must file a petition for review within 30 days of the issuance
of the final order. See INA § 242(b)(1); 8 U.S.C. § 1252(b)(1). Moreover, an order
of removal becomes final upon the BIA’s dismissal of an appeal. See 8 C.F.R.
§ 1241.1(a). “Since the statutory limit for filing a petition for review in an
immigration proceeding is ‘mandatory and jurisdictional,’ it is not subject to
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equitable tolling.” Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir.
2005) (quoting Stone v. INS, 514 U.S. 386, 405 (1995)). And the finality of a
removal order is not affected by the filing of a motion to reconsider. Stone, 514
U.S. at 405.
On February 28, 2006, the BIA entered its final order of removal. Ruiz did
not file his petition for review until May 24, 2006, which was well after expiration
of the 30-day time period. Ruiz’s intervening motion for reconsideration did not
toll the deadline for filing a petition for review with this Court. Id. Therefore, his
petition was not timely, and we lack jurisdiction to address the merits of the IJ’s
decision denying asylum and withholding of removal. Accordingly, we dismiss
the petition, in part, for lack of jurisdiction to the extent that Ruiz seeks review of
the BIA’s final order of removal.
Ruiz’s notice of appeal was timely as to the BIA’s order denying Ruiz’s
motion to reopen and reconsider. Accordingly, we have jurisdiction to review that
order. Our review is for abuse of discretion. Mohammed Salim Ali v. U.S. Att’y
Gen., 443 F.3d 804, 808 (11th Cir. 2006) (motion to reopen); Assa’ad v. U.S. Att’y
Gen., 332 F.3d 1321, 1341 (11th Cir. 2003) (motion to reconsider). “We employ a
very deferential abuse of discretion standard in reviewing the BIA’s decision on a
motion to reopen regardless of the underlying basis of the alien’s request for
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relief.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001) (internal
quotation marks omitted). “Our review is limited to determining whether there has
been an exercise of administrative discretion and whether the matter of exercise
has been arbitrary or capricious.” Ali, 443 F.3d at 808 (internal quotation omitted).
Motions to reconsider and reopen are disfavored in removal proceedings. INS v.
Doherty, 502 U.S. 314, 323 (1992).
“A motion to reconsider shall state the reasons for the motion by specifying
the errors of fact or law in the prior Board decision and shall be supported by
pertinent authority.” INA § 240(c)(6)(C), 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R.
§ 1003.2(b)(1). A motion to reopen shall state “new facts” that would be proven at
a new hearing but “shall not be granted unless it appears to the Board that evidence
sought to be offered is material and was not available and could not have been
discovered or presented at the former hearing . . . .” 8 C.F.R. § 1003.2(c)(1); see
also INA § 240(c)(7)(B), 8 U.S.C. § 1229a(c)(7)(B).
Here, Ruiz did not present evidence or argument that the BIA committed an
error of law or fact in denying his asylum petition. See 8 C.F.R. § 1003.2(b)(1).
Instead, Ruiz chose to reargue the merits of his already-rejected claims. Moreover,
he did not present new evidence that warranted reopening the proceedings.
Although Ruiz presented new evidence that provided further support for his
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credibility, in the IJ’s order denying relief, which was adopted by the BIA, the IJ
assumed Ruiz’s testimony was credible but nevertheless found that Ruiz had not
established persecution on account of his political opinion. Simply put, the new
evidence did not state “new facts” that had not already been considered by the BIA
and IJ. See 8 C.F.R. § 1003.2(c)(1). On this record, we can discern no abuse of
discretion in the BIA’s order denying Ruiz’s motion to reopen or to reconsider.
After thorough review of the record and careful consideration of the parties’
briefs, we dismiss the petition as to the BIA’s final order of removal and deny the
petition as to the denial of Ruiz’s motion to reopen or reconsider.
PETITION DISMISSED IN PART, DENIED IN PART.
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