[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16397 MAY 31, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
Agency Nos. A79-497-927
A79-497-928
AMANDA VELASQUEZ,
CAMILO ARTURO OROZCO, et al.,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 31, 2006)
Before DUBINA, BLACK and HULL, Circuit Judges.
PER CURIAM:
Petitioners Amanda Velasquez and Camilo Arturo Orozco, and their
children, Sara Lorena Orozco and Juan Camilo Orozco seek review of the Board of
Immigration Appeals’ (BIA’s) removal order and the BIA’s order denying their
motion to reconsider, also construed as a motion to reopen. We dismiss their
petition as it relates to the removal order, and deny their petition as it relates to the
motion to reconsider or motion to reopen.
I. DISCUSSION
A. Removal order
Subject matter jurisdiction is reviewed de novo. Brooks v. Ashcroft, 283
F.3d 1268, 1272 (11th Cir. 2002). While we generally have jurisdiction to review
final orders of removal, the petition for review must be filed within 30 days of the
date of the final order of removal. 8 U.S.C. § 1252(a)(1) and (b)(1). “Since the
statutory limit for filing a petition for review in an immigration proceeding is
‘mandatory and jurisdictional,’ it is not subject to equitable tolling.” Dakane v.
U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005) (citing Stone v. INS, 115
S. Ct. 1537, 1549 (1995)). A motion to reconsider filed with the BIA does not
suspend the finality of the underlying BIA order and does not toll the review
period. Stone, 115 S. Ct. at 1549 (construing the former 90-day period for filing a
petition for review under 8 U.S.C. § 1105(a)).
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The BIA’s final order of removal in this case was issued when the BIA
dismissed the Petitioners’ appeal from the Immigration Judge’s order of removal.
Although Petitioners filed a timely motion to reconsider the BIA’s dismissal of
their appeal, the filing did not toll the limitations period for filing a petition for
review. Because the Petitioners filed their petition for review more than 30 days
after the BIA’s removal order, we lack jurisdiction to review that order and dismiss
their petition as to the removal order.
B. Motion to reopen or reconsider
The petition for review was timely with respect to the BIA’s order denying
Petitioners’ motion to reopen or reconsider, and we have jurisdiction to review that
order. We review the BIA’s denial of a motion to reopen or reconsider for an
abuse of discretion. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir.
2001) (motion to reopen); Assa’ad v. U.S. Attorney Gen., 332 F.3d 1321, 1341
(11th Cir. 2003) (motion to reconsider).
“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). 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 [BIA] that evidence sought to be offered is material and was not
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available and could not have been discovered or presented at the former
hearing . . . .” 8 C.F.R. § 1003.2(c)(1).
The BIA did not abuse its discretion in denying Petitioners’ motion to
reconsider because they failed to specify any errors of law or fact in the BIA’s
decision. Additionally, the BIA did not abuse its discretion in denying the
Petitioners’ motion to reopen. First, the proffered new evidence, an affidavit from
a law school professor, was not previously unavailable. Additionally, the affidavit
was not material and would not have changed the results in the case because it did
not address the IJ’s findings that Velasquez’s testimony and asylum application
were inconsistent and vague. The affidavit merely summarized conditions in
Colombia and provided no details regarding the Petitioners’ specific claims. In
fact, the professor acknowledged that he could not verify the truth of the
Petitioners’ claims.
II. CONCLUSION
Accordingly, the Petitioners’ petition for review of the BIA’s removal order
is dismissed, and their petition for review of the BIA’s order denying their motion
to reopen or reconsider is denied.
PETITION DISMISSED IN PART, DENIED IN PART.
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