Jesus A. Oviedo Cala v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10505 ELEVENTH CIRCUIT
AUGUST 26, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK

Agency Nos. A088-052-170,
A088-052-171

JESUS ANTONIO OVIEDO CALA,
MARIA AUXILIADORA CONTRERAS ANGARITA,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(August 26, 2009)

Before BIRCH, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:
Jesus Antonio Oviedo Cala,1 a citizen of Venezuela, arrived in the United

States on a non-immigrant visitor’s visa in August of 2003. More than three years

later, in October 2006, Cala filed an application for asylum, withholding of

removal, and United Nations Convention Against Torture (“CAT”) relief. The

Immigration Judge (“IJ”) denied Cala’s application, finding, inter alia, that the

request for asylum was time-barred and that Cala’s allegations did not rise to the

level of persecution. Cala appealed the denial of his application for asylum and

withholding of removal to the Board of Immigration Appeals (“BIA”).2 The BIA

affirmed the IJ’s decision, finding that Cala had not proven that exigent

circumstances justified the failure to timely file his asylum application and that

Cala had not met his burden of proving eligibility for withholding of removal.

Cala moved for reconsideration, arguing that (1) the BIA should have permitted

him to file an out-of-time asylum application due to extraordinary circumstances;

and (2) given the record, the BIA erred by finding that he did not suffer past

persecution or have a well-founded fear of future persecution. The BIA denied this

motion to reconsider. Cala now petitions, pro se, for review of the BIA’s denial of

his motion to reconsider its previous order denying his petition for asylum and

1
Cala’s wife, Maria Contreras Angarita, is a derivative beneficiary of Cala’s application.
Because Angarita has adopted Cala’s arguments, this opinion will not refer to Angarita.
2
Cala did not appeal the denial of his request for protection under the CAT; therefore,
this claim has been waived. 8 C.F.R. §§ 1208.16-18.
2
withholding of removal.

We “review subject matter jurisdiction de novo.” Gonzalez-Oropeza v. U.S.

Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). We review “the BIA’s 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).

II.

In his petition, Cala first argues that the BIA erred by finding that his

untimely asylum application was not justified by extraordinary circumstances.

An asylum application must be “filed within 1 year after the date of the

alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). An untimely

application may be considered if the alien can demonstrate the “existence of

changed circumstances which materially affect” his eligibility or “extraordinary

circumstances” relating to the delay in filing his application. Id., § 1158(a)(2)(D).

However, “[n]o court shall have jurisdiction to review any determination” made

pursuant to § 1158(a)(2). See 8 U.S.C. §§ 1158(a)(2)(D), (a)(3). We have held

that this language precludes federal court review of determinations regarding the

timeliness of an asylum application or the “changed or extraordinary

circumstances” exceptions. Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th

Cir. 2002).
3
Because we lack jurisdiction to review the BIA’s determination that the

extraordinary circumstances exception did not excuse the untimeliness of Cala’s

asylum application, we dismiss this part of his petition.

III.

Cala next argues that the BIA erred by failing to reconsider its finding that

Cala did not establish past persecution in support of his petition for withholding of

removal.

A motion to reconsider must “state the reasons for the motion by specifying

the errors of fact or law in the prior [BIA] decision and [must] be supported by

pertinent authority.” 8 C.F.R. § 1003.2(b)(1). We have held that “merely

reiterating arguments previously presented to the BIA” fails to satisfy this

standard. Calle, 504 F.3d at 1329.

In his motion to reconsider the BIA’s denial of his appeal, Cala argued that

the BIA erred in finding that Cala did not establish that he had been persecuted in

Venezuela or that it was more likely than not that he would be subject to

persecution upon returning to Venezuela. Cala pointed to evidence in the record

indicating that Cala was detained, beaten, and sprayed with tear gas after being

taken by MVR members for protesting against them. However, these arguments

offered nothing more than a reiteration of the arguments and evidence set forth in

his appeal. The BIA already considered and rejected these arguments in its
4
original order. It is well established that a motion for reconsideration is intended to

“contest[] the correctness of the original decision based on the previous factual

record” and will be denied if it is based on arguments that were or could have been

made in an earlier proceeding. In re O-S-G, 24 I&N Dec. 56, 57-58 (BIA 2006).

Accordingly, the BIA did not abuse its discretion by denying Cala’s motion for

reconsideration, because that motion merely restated the arguments Cala had

previously raised before the BIA and did not specify errors of fact or law in the

BIA’s original order. See 8 C.F.R. § 1003.2(b)(1). Accordingly, we deny this part

of Cala’s petition.

PETITION DISMISSED IN PART, DENIED IN PART.