Aulio Mauricio Diaz v. U.S. Attorney General

[DO NOT PUBLISH]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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