Geber Eloy 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[DO NOT PUBLISH]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
Aug. 21, 2009
No. 09-10438 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

Agency No. A098-678-768

GEBER ELOY DIAZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(August 21, 2009)

Before BLACK, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:
 Geber Eloy Diaz, a citizen of Venezuela, petitions this court for review of

the Board of Immigration Appeals’ (“BIA”) decision denying his motion to

reconsider the BIA’s previous order denying his motion to reopen his removal

proceedings. On appeal, Diaz identifies two errors that he contends warranted the

BIA’s reconsideration. First, he argues that the BIA erred as a matter of law by

refusing to consider three letters that he had submitted in support of his motion to

reopen. Second, Diaz asserts that the evidence that he submitted in support of his

motion to reopen was sufficient to establish changed country conditions in

Venezuela.

We review the BIA’s denial of a motion to reconsider for an abuse of

discretion. Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007). Our

review is limited to determining whether the BIA’s exercise of its discretion was

arbitrary or capricious. Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir.

2005) (discussing standard for motions to reopen).

An alien who is subject to a final order of removal may move the BIA to

reopen his removal proceedings based on new evidence. 8 C.F.R. 1003.2(c)(1).

Generally, an alien must file a motion to reopen within 90 days of the entry of a

final order of removal. 8 C.F.R. 1003.2(c)(2). That time limit does not apply,

however, if the motion to reopen is based on changed country conditions. Id.

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

the errors of fact or law in the prior Board decision and shall be supported by

pertinent authority.” 8 C.F.R. § 1003.2(b)(1). “[M]erely 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, 504 F.3d at 1329.

Here, in its order denying Diaz’s motion to reopen, the BIA found that the letters

submitted by Diaz were unreliable due to their uncertain origin. The BIA also

found that the evidence submitted by Diaz failed to establish changed country

conditions. In his motion to reconsider, Diaz did not specifically explain how

either conclusion was erroneous; instead, he merely reasserted the arguments made

in his motion to reopen.1 Because Diaz failed to establish that the BIA committed

any errors in denying the motion to reopen, the BIA did not abuse its discretion in

denying the motion to reconsider. Accordingly, we deny Diaz’s petition.

PETITION DENIED.

1
Although Diaz explains that he was not required to authenticate the letters, he failed to
raise that issue before the BIA and thus has not exhausted it. Fernandez-Bernal v. U.S. Att’y
Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001).
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