[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
July 27, 2009
No. 08-15507 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A097-949-547
ROBERTO LUIS ZAPATA-GOMEZ,
a.k.a. Juan Felipe Villa Hoyos,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 27, 2009)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Roberto Luis Zapata-Gomez, a native and citizen of Colombia proceeding
pro se, seeks our review of the Board of Immigration Appeals’ (“BIA”) final order
denying his motion to reconsider or reopen the denial of his earlier application for
asylum, withholding of removal, and relief under the Convention Against Torture.
In his petition for review, Zapata-Gomez argues that the BIA failed to sufficiently
articulate its reasons for denying his motion. He further argues that the BIA
abused its discretion when it denied his motion to the extent that he sought to
reopen his asylum proceeding. Both arguments fail. We address each in turn.
I.
Zapata-Gomez argues that the BIA failed to sufficiently articulate its reasons
for denying his motion. Procedurally, when the BIA has not made findings of fact
or has not applied the law to those facts, appellate courts should remand to allow
the BIA to make such determinations in the first instance. INS v. Ventura, 537
U.S. 12, 16, 123 S. Ct. 353, 355 (2002) (per curiam) (“[A] court of appeals should
remand a case to an agency for decision of a matter that statutes place primarily in
agency hands.”). Remanding a case is also appropriate when the BIA fails to give
“reasoned consideration” to all the evidence. Tan v. U.S. Att’y Gen., 446 F.3d
1369, 1375, 1377 (11th Cir. 2006) (citation omitted).
Substantively, “[w]e review the BIA’s denial of a motion for reconsideration
for an abuse of discretion.” Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1286 (11th
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Cir. 2008) (per curiam) (citation omitted). “A motion to reconsider a decision
must be filed with the [BIA] within 30 days after the mailing of the [BIA] decision
. . . .” 8 C.F.R. § 1003.2(b)(2). The motion “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.” Id. at § 1003.2(b)(1).
Here, the BIA explained that it denied Zapata-Gomez’s motion because the
motion was untimely. The BIA mailed its decision on May 21, 2008, but it did not
receive Zapata-Gomez’s motion until three days after the June 20, 2008 deadline
for filing a motion to reconsider. Because the motion was untimely, the BIA did
not abuse its discretion by denying reconsideration.
Finally, to the extent that Zapata-Gomez’s motion includes a substantive
challenge to the denial of reconsideration, it is still meritless. Zapata-Gomez failed
to specify any errors of fact or law in the prior BIA decision. Thus, he has failed to
establish any substantive error in the BIA’s denial of reconsideration.
II.
Zapata-Gomez argues that the BIA abused its discretion by not granting his
motion to the extent that he sought to reopen his asylum proceeding and have new
evidence considered. “[W]e employ a very deferential abuse of discretion standard
in reviewing the BIA’s decision on a motion to reopen regardless of the underlying
basis of the alien’s request for relief.” Najjar v. Ashcroft, 257 F.3d 1262, 1302
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(11th Cir. 2001) (quotation marks and citation omitted). One independent ground
upon which the BIA may deny a motion to reopen is the “failure to introduce
evidence that was material and previously unavailable . . . .” Id.
Here, Zapata-Gomez’s new evidence was previously available and not
material. The police investigation exhibit that he had submitted to the immigration
judge was not new. Zapata-Gomez also did not explain in his motion to the BIA
why he could not have previously obtained his other exhibits. He even admitted
that his new exhibits were “technically available earlier.” Thus, he fails to show
that the new evidence was previously unavailable.
Zapata-Gomez also fails to show that the new evidence is material. Even
liberally construed, the evidence showed only that his uncle was possibly fatally
shot by an armed group. It did not connect the murder to FARC or otherwise help
establish that Zapata-Gomez suffered persecution on a protected ground.
Therefore, the BIA did not abuse its discretion by denying his request to reopen the
asylum proceedings and consider new evidence.
III.
Because we find no abuse of discretion in the BIA’s final order denying
Zapata-Gomez’s motion to reconsider or reopen, we deny his petition for review.
PETITION DENIED.
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