[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 2, 2008
No. 07-13523 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A97-635-389
CIRA ELENA CASTELLANO MORAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 2, 2008)
Before TJOFLAT, BLACK and CARNES, Circuit Judges.
PER CURIAM:
Cira Elena Castellano Moran, a native and citizen of Venezuela, petitions for
review of the decision of the Board of Immigration Appeals denying her motions
to reconsider and reopen its earlier decision, which affirmed the Immigration
Judge’s removal order.
Castellano was admitted to the United States in 2002. After she received a
Notice to Appear charging her with removability in October 2003, she filed an
application for asylum, withholding of removal, and relief under the United
Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment. Castellano’s application claimed that on account of her
political opinion she had suffered past persecution at the hands of the Bolivarian
Circles, a group supporting Venezuelan president Hugo Chavez, and the
Directorate of Intelligence and Prevention Services.
After a hearing, the IJ denied Castellano’s asylum and withholding of
removal claims, concluding that any harm that she suffered did not rise to the level
of persecution and that she had failed to prove a well-founded fear of future
persecution. The IJ also determined that Castellano had not established that she
had been tortured in Venezuela and, therefore, denied her claim for relief under the
CAT.
Castellano appealed to the BIA, arguing that she had established both that
she suffered past persecution and that she had a well-founded fear of future
persecution on account of her political opinion. She further contended that she had
proved she was tortured by the government of Venezuela. On March 13, 2006 the
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BIA affirmed the IJ’s decision without opinion.
On April 10, 2006 Castellano filed a motion to reconsider with the BIA. She
included with that motion an article reporting that the Chavez government in
Venezuela has no tolerance for dissent and that citizens have been beaten, killed,
imprisoned, and tortured for protesting.
The BIA denied Castellano’s motion for reconsideration, concluding that she
had failed to identify any error of fact or law in its previous decision. Instead, the
BIA noted, Castellano had reiterated the arguments she had made on appeal, which
it had already considered and rejected. Because she submitted new evidence with
her motion, however, the BIA also treated Castellano’s motion as a motion to
reopen. The BIA concluded that the article submitted by Castellano contained
information that was merely cumulative of information that she had previously
submitted, which also indicated that there were significant political tensions
between the Venezuelan government and its opposition. The BIA, therefore,
denied the motion to reopen as well. On August 1, 2007 Castellano petitioned this
Court for review of the BIA’s denial of her motion to reconsider.
I.
Castellano first contends that the IJ erred in finding that she is not a refugee
and that she did not establish that she suffered past persecution or has a well-
founded fear of future persecution on account of her political opinion. She also
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contends that the BIA erred in affirming the IJ’s decision.
This Court reviews de novo whether it has subject matter jurisdiction. Arias
v. U.S. Att’y Gen., 482 F.3d 1281, 1283 (11th Cir. 2007). An alien seeking review
of an order of removal must file a petition for review within 30 days of the date of
the final order of removal. 8 U.S.C. § 1252(b)(1). An order of removal becomes
final upon the dismissal of an appeal by the BIA. See 8 C.F.R. § 1241.1(a).
“[T]he statutory limit for filing a petition for review in an immigration proceeding
is ‘mandatory and jurisdictional, [and] it is not subject to 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, 115 S. Ct. 1537, 1549 (1995)). The finality of an
order of removal, moreover, is not affected by the filing of a motion to reconsider.
Stone, 514 U.S. at 405, 115 S. Ct. at 1549.
We cannot consider the merits of Castellano’s arguments attacking the final
order of removal because we lack jurisdiction to do so. The order became final on
March 13, 2006 when the BIA affirmed the IJ’s decision. See 8 C.F.R. §
1241.1(a). Although Castellano filed a motion to reconsider with the BIA on April
10, 2006, that filing did not change the date that the order of removal became final.
See Stone, 514 U.S. at 405, 115 S. Ct. at 1549. She did not file her petition for
review with this Court until August 1, 2007, over one year after the BIA affirmed
the IJ’s decision. Because she failed to file a petition for review within 30 days of
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the date of the final order of removal, as required by 8 U.S.C. § 1252(b)(1), this
Court does not have jurisdiction to address the merits of Castellano’s claims about
that order. Our jurisdiction is limited to reviewing the BIA’s denial of the motion
for reconsideration.
II.
Castellano contends that the BIA erred by concluding that the new
information she submitted with her motion to reconsider was cumulative. She also
argues that the BIA erred in denying her motion for reconsideration because she
presented sufficient evidence to support a finding of past persecution and future
persecution on account of her political opinion.
This Court reviews the BIA’s denial of a motion for reconsideration and a
motion to reopen only for an abuse of discretion. Assa’ad v. U.S. Att’y Gen., 332
F.3d 1321, 1341 (11th Cir. 2003) (relating to a motion for reconsideration);
Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1340 (11th Cir. 2003) (relating to a
motion to reopen). Because they are discretionary forms of relief, judicial review
of denials of motions for reconsideration and to reopen are “limited to determining
‘whether there has been an exercise of administrative discretion and whether the
matter of exercise has been arbitrary or capricious.’” See Garcia-Mir v. Smith, 766
F.2d 1478, 1490 (11th Cir. 1985) (citation omitted) (relating to a motion to
reopen); see also Assa’ad, 332 F.3d at 1340–41 (noting that motions to reconsider
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are within the discretion of the BIA).
In a motion for reconsideration, an alien must “specify the errors of law or
fact in the previous order” and must support the motion with “pertinent authority.”
8 U.S.C. § 1229a(c)(6)(A) & (C); see also 8 C.F.R. § 1003.2(b)(1). This Court has
noted that “merely reiterating arguments previously presented to the BIA does not
constitute ‘specifying . . . errors of fact or law’ as required for a successful motion
to reconsider.” Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1329 (11th Cir. 2007)
(citation omitted) (omission in original). Thus, “[a] motion that merely republishes
the reasons that had failed to convince the tribunal in the first place gives the
tribunal no reason to change its mind.” Id. (internal quotation marks and citation
omitted) (alteration in original).
A motion to reopen must “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 U.S.C. § 1229a(c)(7)(B); see also 8 C.F.R. § 1003.2(c)(1).
The motion will be granted only if “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). An alien making a
motion to reopen “bears a ‘heavy burden,’ and must ‘present[] evidence of such a
nature that the [BIA] is satisfied that if proceedings before the [IJ] were reopened,
with all attendant delays, the new evidence offered would likely change the result
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in the case.’” Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006) (citation
omitted) (alterations in original).
The BIA did not abuse its discretion in denying Castellano’s motion for
reconsideration. In her motion, she argued primarily that she had established that
she suffered past persecution because of her involvement with the Democratic
Action Political Party of Venezuela, that she had a well-founded fear of future
persecution based on her past persecution, that she cannot safely relocate to
another town or city, and that she cannot obtain protection from the government of
Venezuela. Those arguments, however, merely reiterated ones that she made in her
initial appeal, which the BIA had already considered and rejected. The BIA did
not err in denying her motion for reconsideration. See 8 U.S.C. § 1229a(c)(6)(A)
& (C); see also Calle, 504 F.3d at 1330–31 (rejecting an alien’s motion to
reconsider because the motion “offered nothing more than reiteration of her
assertions in her motion to reopen”).
Nor did the BIA abuse its discretion by construing Castellano’s motion as a
motion to reopen and denying it. Her motion failed to state any new material facts
that warranted reopening her case. The article that she submitted with her motion
was not material because the information in it was cumulative of that she had
already submitted. The article alleged that the Chavez government in Venezuela
violates human rights on a regular basis and does not tolerate disagreement with it.
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Both the IJ and the BIA, however, had already considered numerous articles
submitted by Castellano to the same effect. As a result, the additional article
submitted in connection with the motion to reopen does not establish that if the
proceedings were reopened, “the new evidence offered would likely change the
result in the case.” See Ali, 443 F.3d at 813. Accordingly, the BIA did not abuse
its discretion in denying her motion to reopen.
III.
In conclusion, we lack jurisdiction to review the petition insofar as it
challenges the final order of removal and therefore DISMISS the petition in part.
We DENY the petition for review insofar as it challenges the BIA’s denial of
Castellano’s motion to reconsider and reopen.
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