Roberto Nicolas Visbal Guerra 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[DO NOT PUBLISH]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. 06-11834 OCTOBER 18, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________

BIA Nos. A95-227-543 & A95-227-544

ROBERTO NICOLAS VISBAL GUERRA,
NUBIA MANDON IBANEZ,
HUMBERTO J. VISBAL MANDON,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(October 18, 2006)

Before MARCUS, WILSON and FAY, Circuit Judges.

PER CURIAM:
Roberto Nicolas Visbal Guerra, his wife, Nubia Mandon Ibanez, and his son,

Humberto J. Visbal Mandon, Colombian nationals and citizens, petition for review

of the Board of Immigration Appeals’ (“BIA”) denial of their motion to reconsider

the BIA’s previous denial of their motion to reopen. The petitioners argue that the

BIA abused its discretion by denying reconsideration. For the reasons set forth

more fully below, we deny the petition.

Visbal Guerra unsuccessfully sought asylum, withholding of removal, and

relief under the United Nations Convention Against Torture and Other Cruel,

Inhuman, or Degrading Treatment or Punishment (“CAT”). Asylum and

withholding of removal under the Immigration and Nationality Act (“INA”) were

denied on the ground that Visbal Guerra failed to establish persecution on account

of a protected ground because the National Liberation Army’s (“ELN”) motive

was monetary.

The petitioners sought to reopen their removal proceedings, alleging that

new evidence demonstrated that the persecution was on account of imputed

political opinion. In support of their motion, the petitioners submitted statements

by Ruby Estela Visbal Guerra (“Ruby”) and Maria Estela Visbal Ballesteros and a

death certificate. Ruby stated that, on Sunday, June 26, 2005, two men from the

ELN came to her sister’s home and asked her, her sister Nancy, and her mother

about Visbal Guerra and his family. The men stated that Visbal Guerra would be
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tried before the ELN because of his collaboration with the Liberal Party, stating

that he should have complied with their demands, especially ceasing his

collaboration with the Liberal Party. During the altercation, one of the men

pointed a gun at Nancy’s head, Ruby’s mother fainted, suffered a stroke, and

passed away on June 29, 2005, at 5:10 p.m. Ballesteros certified that, on Sunday,

July 26, 2005, she went to her niece Nancy’s house after Nancy asked for help

because Nancy’s mother was dying. A death certificate for Dolores Lola Guerra

De Visbal listed the date of death as June 24, 2005, at 5:10 p.m.

The BIA denied the motion to reopen. Citing discrepancies between the

dates in the documents, the BIA found that an examination of the documents

revealed their untrustworthiness. Because it found the new evidence “inherently

unreliable,” the BIA denied the motion on the ground that Visbal Guerra did not

establish a prima facie case of eligibility for relief.

The petitioners filed a motion to reconsider, admitting that the BIA’s finding

of untrustworthiness stemming from the inconsistent dates was “understandable,”

but arguing that these contradictions resulted from Ballesteros mistakenly writing

“Sunday the 26th of July” instead of “Sunday the 26th of June” and the fact that

the person translating the death certificate mistook the nine for a four. In support

of their motion, the petitioners submitted a statement by Ballesteros clarifying that

an incorrect date was in her previous statement due to a “transcription error in the
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document,” and that the correct date was June 26, 2005. In an affidavit, the

translator of the death certificate stated that she did not realize that she made a

mistake in the translation until the BIA denied reopening and, upon “very close

examination” of the document and examination of the fours and nines in other

parts of the document, the date should have been translated as June 29, 2005.

The BIA denied the motion, finding no error in its earlier decision. The BIA

stated:

In that decision we noted discrepancies between the documents
submitted in support of the motion. The respondents now state that
the discrepant dates were due to unfortunate mistakes. First, we
disagree that the Spanish language death certificate reflects a date of
death of June 29, 2005, rather than June 24, 2005. Consequently, we
find unconvincing the translator’s explanation that she mistook the
“4” for a “9.” The respondents also contend that Maria Estela Visbal
Ballesteros mistakenly wrote July 26, instead of June 26, regarding
the date she found her sister-in-law-unconscious. However, in her
statement, Maria indicates the error was due to “transcription error.”
We also note that because the respondents have submitted new
evidence they wish to have considered, their motion is more properly
characterized as a motion to reopen, and as such it is number-barred.

The petitioners argue that the BIA abused its discretion by treating their

motion to reconsider as a motion to reopen because the motion specified errors of

law or fact in the BIA’s earlier decision and was supported by pertinent authority.

They argue that the BIA erred in finding that the attachments constituted “new

evidence,” as they were necessary to explain errors that the BIA overlooked. The

petitioners next argue that the BIA abused its discretion by discounting their
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arguments. First, they argue that, because the digits four and nine closely resemble

each other on the Spanish language death certificate, the BIA’s certainty as to the

date is “baffling.” Second, they argue that, because “transcribe” means “[t]o make

a full or typewritten copy of,” if Ballesteros did the typing – which she did – she

both wrote and transcribed incorrectly. They contend that, more importantly, it

does not matter who made the mistake, only than an incorrect date was assigned to

the event.

We review the denial of a motion to reconsider for abuse of discretion.

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

motion to reopen also is reviewed for abuse of discretion. Ali v. U.S. Att’y Gen.,

443 F.3d 804, 808 (11th Cir. 2006). “Judicial review of denials of discretionary

relief incident to deportation proceedings, including denials of motions to reopen,

is limited to determining ‘whether there has been an exercise of administrative

discretion and whether the matter of exercise has been arbitrary or capricious.’”

Garcia-Mir v. Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (citation omitted). “An

abuse of discretion may be found in those circumstances where the [BIA’s]

decision provides no rational explanation, inexplicably departs from established

policies, is devoid of any reasoning, or contains only summary or conclusory

statements; that is to say, where the [BIA] has acted in an arbitrary or capricious

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manner.” Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (citations

omitted).

Generally, an alien may file one motion to reopen removal proceedings. 8

U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). “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); 8 U.S.C. § 1229a(c)(6)(C). “A motion to reopen proceedings shall

state the new facts that will be proven at a hearing to be held if the motion is

granted and shall be supported by affidavits or other evidentiary material.” 8

C.F.R. § 1003.2(c)(1); 8 U.S.C. § 1229a(c)(7)(B). The BIA has distinguished

between motions to reopen and motions to reconsider, stating that, upon

reconsideration, it considers “the case as though a decision in the case on the

record before us had never been entered,” whereas a motion to reopen seeks to

reopen the proceedings to present new evidence. Matter of Cerna, 20 I. & N. Dec.

399, 402-03 (BIA 1991). “When the [BIA] reconsiders it takes itself back in time

and looks at the case as though a decision had never been entered. Thus, if it grants

the motion, the [BIA] considers the case anew as it existed at the time of the

original decision. By contrast, a motion to reopen asks that the proceedings be

reopened for new evidence and a new decision, usually after an evidentiary

hearing.” Zhao, 265 F.3d at 90 (citations omitted).
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The petitioners made no attempt to explain the discrepant dates when they

filed their motion to reopen. We do not find an abuse of discretion in the BIA’s

rejection of their attempt to do so on reconsideration. To the extent that the

petitioners relied upon new facts that were not in the record at the time the BIA

denied their motion to reopen, the BIA correctly followed its own case law and

regulations in construing their motion as a motion to reopen. Cerna, 20 I. & N.

Dec. at 402-03; Zhao, 265 F.3d at 90; 8 C.F.R. § 1003.2(b)(1), (c)(1); 8 U.S.C.

§ 1229a(c)(6)(C), (7)(B).

The BIA also addressed and rejected the petitioners’ explanations for the

discrepant dates. After its own examination of the Spanish language death

certificate, the BIA concluded that it reflected a date of death of June 24, 2005. By

conducting such an examination, but reaching its own conclusion, the BIA did not

act in an arbitrary or capricious manner. The BIA could reasonably conclude that

the petitioners’ explanation of the incorrect date in Ballesteros’s statement

conflicted with Ballesteros’s own explanation of the mistake. We note that the

petitioners’ explanation as to why there was no conflict relies upon assumptions

and facts not in the administrative record. Moreover, in light of the failure to

address the error when Ballesteros’s statement was originally submitted and the

BIA’s rejection of the translator’s explanation of the discrepant date on the death

certificate, declining to reconsider its earlier decision based on Ballesteros’s
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belated assertion that the correct date was June 26, 2005, was not an abuse of

discretion.

In light of the foregoing, we hold that the BIA did not abuse its discretion by

denying the petitioners’ motion to reconsider.

PETITION DENIED.