[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14150 SEPTEMBER 14, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
BIA No. A78-350-672
JOSE MANUEL PAEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 14, 2006)
Before DUBINA, BARKETT and HULL , Circuit Judges.
PER CURIAM:
Jose Manuel Paez, a native and citizen of Colombia, proceeding pro se,
petitions for review of the Board of Immigration Appeal’s (“BIA”) decision to
deny his motion to reconsider his motion to reopen. On appeal, Paez argues that he
provided sufficient evidence to the BIA concerning the bona fides of his marriage,
and, thus, the BIA erred by denying his motion to reopen.
We consider de novo whether we have subject-matter jurisdiction. Brooks
v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002). 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. INA § 242(b)(1); 8 U.S.C. § 1252(b)(1). “[T]he
statutory limit for filing a petition for review in an immigration proceeding is
‘mandatory and jurisdictional,’ [and, therefore,] it is not subject to equitable
tolling.” Dakane v. U.S. Attorney Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005)
(quoting Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 1549, 131 L.Ed.2d 465
(1995)). The Supreme Court has stated that the statute requires that each denial
from the BIA have a separate petition of review. See. Stone 514 U.S. at 394, 115
S.Ct. at1543-44.
Because, as to his motion to reopen, Paez’s only petition for review was not
filed within the applicable statutory time limit, his arguments regarding the merits
of that motion are not properly before us, and we dismiss the petition as to that
issue.
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Paez also asserts that the BIA failed to consider and correctly analyze the
evidence he submitted in his motion to reconsider, causing him and his wife
irreparable harm, and, if the case was remanded to the Immigration Judge, the
government could examine him and his wife concerning the genuineness of their
marriage. Paez, however, failed to address the BIA’s stated reasons for denying
his motion to reconsider, namely that: (1) Paez had failed to show an error of law
or fact in the denial of his motion to reopen; and (2) because the motion to
reconsider only submitted more evidence regarding whether Paez’s marriage was
bona fide, it was in effect, a numerically barred motion to reopen.
We review the BIA’s denial of a motion for reconsideration for an abuse of
discretion. Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003).
A motion for reconsideration “shall specify the errors of law or fact in the previous
order and shall be supported by pertinent authority.” INA § 240(c)(6)(C); 8 U.S.C.
§ 1229a(c)(6)(C); see also 8 C.F.R. § 1003.2(b)(1) (same). We have held that a
motion that wishes to introduce new evidence should be construed as a motion to
reopen. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1301 (11th Cir. 2001)
(construing a motion to remand that introduced new evidence as a motion to
reopen). Judicial review of the denial of a motion 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.
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Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (citation omitted). Additionally, only
one motion to reopen is allowed. See INA § 240(c)(7)(A); 8 U.S.C.
§ 1229a(c)(7)(A).
The BIA did not err in denying the motion for reconsideration, as it failed to
argue or provide evidence regarding a legal or factual error in the BIA’s decision
denying his motion to reopen. Additionally, as Paez’s motion merely submitted
more evidence, it was, in effect, a motion to reopen, which was barred because he
previously had submitted a motion to reopen.
Upon review of the record and upon consideration of the briefs, we find no
reversible error. For the above stated reasons, we dismiss the petition in part and
deny the petition in part.
PETITION DISMISSED IN PART, DENIED IN PART.
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