Jose Luis Garcia-Florian v. U.S. Atty. General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 28, 2009
No. 09-11131 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

Agency No. A074-265-111

JOSE LUIS GARCIA-FLORIAN,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(September 28, 2009)

Before BIRCH, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

Jose Luis Garcia-Florian, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to

reconsider the BIA’s previous order dismissing his appeal and affirming the

Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and relief

under the United Nations Convention Against Torture and Other Cruel, Inhuman

and Degrading Treatment or Punishment (“CAT”). On appeal, Garcia-Florian

argues that the BIA erred by denying his motion to reconsider because he

established that families can be social groups and the BIA erroneously overlooked

his family connections and failed to explain why he was not part of that protected

group. He asserts that, because the BIA failed to address the nexus between the

persecution of his family and his own persecution and failed to give a plausible

explanation for its denial of his motion, it abused its discretion by denying his

motion to reconsider. He lastly contends that the BIA erred by failing to take into

account the humanitarian concerns of asylum law.1

“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). “A

motion to reconsider 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

1
Because Garcia-Florian failed to raise this issue in his motion to reconsider, we lack
jurisdiction to consider this issue. See Sundar v. I.N.S., 328 F.3d 1320, 1323 (11th Cir. 2003)
(noting that the exhaustion requirement is jurisdictional, such that we “lack jurisdiction to
consider claims that have not been raised before the BIA”).
2
authority.” 8 C.F.R. § 1003.2(b)(1); see also 8 U.S.C. § 1229a(c)(6)(C), INA §

240(c)(6)(C). A motion to reconsider that merely restates the arguments that the

BIA previously rejected provides no reason for the BIA to change its prior

decision. Calle, 504 F.3d at 1329. “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. (quoting 8 C.F.R. §

1003.2(b)(1)).

In his motion to reconsider, Garcia-Florian failed to show that the BIA made

any errors of fact or law as required by regulation for a successful motion to

reconsider. Instead, Garcia-Florian merely reiterated some of the arguments in his

motion to reconsider that had failed to persuade the BIA in his appeal from the IJ’s

denial of asylum, withholding of removal, and CAT relief. Therefore, the BIA did

not abuse its discretion in denying Garcia-Florian’s motion to reconsider.

Accordingly, upon review of the record and consideration of the parties' briefs, we

deny Garcia-Florian petition for review.

PETITION DENIED.