[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 23, 2009
No. 08-15924 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A096-285-587
AULIO MAURICIO DIAZ,
a.k.a. Aulio Mauricio Diaz-Molina,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 23, 2009)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Aulio Mauricio Diaz, a native and citizen of Venezuela, petitions for review
of the decision of the Board of Immigration Appeals that denied his motion to
reconsider. Diaz argues that the Board should have sua sponte reopened his
removal proceedings and its failure to do so violated his due process rights. We
deny in part and dismiss in part Diaz’s petition.
I. BACKGROUND
Diaz entered the United States as a nonimmigrant visitor. Diaz conceded
removability and applied for asylum, but later withdrew that application with
prejudice and was granted four months to depart voluntarily. Twelve days before
he was required to depart, Diaz moved to withdraw his request for departure and to
reinstate his application for asylum. The immigration judge ruled that Diaz
provided “no substantial grounds” to grant the motion and, in the alternative, that
the motion was untimely to reopen his asylum proceeding.
Diaz filed a second motion to withdraw and argued that he had agreed to
voluntary departure under duress. The immigration judge treated Diaz’s filing as a
motion to reopen and denied that motion as untimely and for failure to provide new
facts that would affect Diaz’s eligibility for asylum. The judge declined sua sponte
to reopen the proceedings because Diaz had not alleged that any exceptional
circumstances would warrant such relief. The immigration judge also ruled that
Diaz’s allegations of coercion by his counsel and the court were without merit
because Diaz had knowingly and voluntarily decided to withdraw his application
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for asylum after the immigration judge found Diaz’s application frivolous.
The Board dismissed Diaz’s appeal. The Board ruled that Diaz failed timely
to move to reopen his asylum proceeding; to provide a reason to exempt him from
the filing deadline; or to provide a reason to reopen his proceeding. Diaz did not
appeal the decision.
Diaz twice moved the Board to reconsider. The Board denied the first
motion on the basis that Diaz failed to establish that the Board made any legal or
factual error in dismissing his appeal. The Board ruled that the second motion was
barred as successive. 8 C.F.R. § 1003.2(b)(2).
II. STANDARD OF REVIEW
We review the denial of a motion to reconsider for abuse of discretion.
Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007).
III. DISCUSSION
Diaz challenges the denial of his motion to reconsider on two grounds. Diaz
argues that the Board should have reopened his asylum proceeding because the
immigration judge violated his due process rights. Diaz also argues that the Board
failed sua sponte to reopen his removal proceedings, but we lack jurisdiction to
consider that argument. See Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1294 (11th
Cir. 2008).
The Board did not abuse its discretion by denying Diaz’s second motion to
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reconsider. Diaz was not permitted to file a successive motion that requested the
Board reconsider the denial of a previous motion to reconsider. INA § 240(c)(6); 8
U.S.C. § 1229a(c)(6)(A); 8 C.F.R. § 1003.2(b)(2). We lack jurisdiction to review
the orders of the Board in earlier proceedings because Diaz did not timely petition
this Court to review those orders. See Dakane v. U.S. Att’y Gen., 399 F.3d 1269,
1272 n.3 (11th Cir. 2005).
IV. CONCLUSION
We DENY the petition challenging the denial of Diaz’s second motion to
reconsider and DISMISS the petition challenging the previous orders of the Board.
DENIED IN PART AND DISMISSED IN PART.
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