[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 11, 2009
No. 08-16713 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A095-552-352, A095-552-353
PAULO ANDRE VIERA-SOARES,
ISABEL CRISTINA MARTINS DOS SANTOS,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 11, 2009)
Before BIRCH, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Petitioners Paulo Andre Viera-Soares and his wife, Isabel Cristina Martins
Dos Santos (collectively “Petitioners”), proceeding pro se, seek review of the
Board of Immigration Appeals’s (“BIA”) order denying their motion to reconsider
its previous decision affirming the Immigration Judge’s (“IJ”) order denying their
application for asylum and withholding of removal under the Immigration and
Nationality Act (“INA”), 8 U.S.C. §§ 1158, 1229a(c)(6), and 1231. The BIA
denied the motion to reconsider because it found “no new legal argument or
particular aspect of the case which was overlooked and no ground upon which to
reconsider [its] previous decision.”
On appeal, Petitioners first argue that the BIA erred in denying their
application for withholding of removal because Viera-Soares established a nexus
between his imputed political opinion and the persecution he suffered, and that he
more likely than not would be persecuted if removed to Brazil. Second, Petitioners
argue that the BIA abused its discretion in denying their motion to reconsider
because the “BIA overlooked evidence of a pattern or practice of persecution of
similarly situated individuals and [Viera-Soares’s] inclusion in that group which
made [his] fear of future persecution subjectively genuine and objectively
reasonable.”
As an initial matter, Petitioners do not argue on appeal that the BIA erred in
denying their application for asylum, and therefore they have abandoned this issue
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on appeal. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.
2005) (noting that when a party fails to offer argument on an issue, that issue is
abandoned).
I. Denial of Application for Withholding of Removal
We review questions of subject matter jurisdiction de novo. Sanchez
Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1231 (11th Cir. 2007). While we
generally have jurisdiction to review final orders of removal, the petition for
review must be filed within 30 days of the date of the final order of removal. INA
§ 242(a)(1), (b)(1), 8 U.S.C. § 1252(a)(1), (b)(1). We do not have jurisdiction to
review a final order of removal if the petition for review is not filed within this
deadline, because “the statutory limit for filing a petition for review in an
immigration proceeding is mandatory and jurisdictional [and] is not subject to
equitable tolling.” Dakane v. U.S. Att’y Gen., 371 F.3d 771, 773 n.3 (11th Cir.
2004) (quotation omitted). Furthermore, the Supreme Court has held that “the
filing of [a] reconsideration motion does not toll the time to petition for review.”
Stone v. I.N.S., 514 U.S. 386, 395, 115 S.Ct. 1537, 1544, 131 L.Ed.2d 465 (1995);
see also Dakane, 371 F.3d at 773 n.3 (citing Stone for the proposition that the time
for filing a petition for review “is not suspended or tolled by the [filing of] a
motion to reopen the removal proceedings”).
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Because Petitioners did not file their petition for review within 30 days of
the BIA’s order denying their application for withholding of removal, we do not
have jurisdiction to consider the merits of that decision. Accordingly, we dismiss
the petition for review as to this issue.
II. Denial of Motion to Reconsider
“We review the BIA’s denial of a motion to reconsider for abuse of
discretion.” Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003).
“Our review is limited to determining whether there has been an exercise of
administrative discretion and whether the matter of exercise has been arbitrary or
capricious.” Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1226 (11th Cir.
2008) (addressing motions to reopen) (quotation omitted). Motions to reconsider
are disfavored, especially in a removal proceeding, “where, as a general matter,
every delay works to the advantage of the deportable alien who wishes merely to
remain in the United States.” I.N.S. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719,
724-25, 116 L.Ed.2d 823 (1992) (discussing motions to reopen).
“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); see also INA § 240(c)(6)(C), 8
U.S.C. § 1229a(c)(6)(C). “However, a motion that merely republishes the reasons
that had failed to convince the tribunal in the first place gives the tribunal no
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reason to change its mind.” Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1329 (11th
Cir. 2007) (quotation and alteration omitted). “Therefore, merely reiterating
arguments previously presented to the BIA does not constitute ‘specifying errors of
fact or law’ as required for a successful motion to reconsider.” Id. (citing 8 C.F.R.
§ 1003.2(b)(1)) (ellipsis omitted).
The BIA did not abuse its discretion in denying Petitioners’ motion to
reconsider because the motion merely reiterated the arguments that the BIA
previously had considered and rejected. Accordingly, we deny the petition for
review as to this issue.
Upon review of the record and consideration of the parties’ briefs, we
dismiss the petition for review in part and deny it in part.
PETITION DISMISSED IN PART AND DENIED IN PART.
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