[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 23, 2007
No. 06-14672 THOMAS K. KAHN
________________________ CLERK
BIA Nos.
A95-553-292 & A95-553-293
BEATRIZ HELENA CALLE,
OCTAVIO ALBERTO MOLINA ARANGO, et al.
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 23, 2007)
Before DUBINA and MARCUS, Circuit Judges, and COOGLER,* District Judge.
____________________
* Honorable L. Scott Coogler, United States District Judge for the Northern District of Alabama,
sitting by designation.
DUBINA, Circuit Judge:
Beatriz Helena Calle (“Calle”), on behalf of herself, her husband, and her
two children, petitions this court for review of the Board of Immigration Appeals’
(“BIA”) denial of her motion for reconsideration of the BIA’s denial of her motion
to reopen. The BIA denied Calle’s motion to reconsider as numerically barred
under 8 C.F.R. § 1003.2(b)(2). For the reasons set forth more fully below, we deny
the petition for review.
I. BACKGROUND
Calle, her husband, and their two children, all natives and citizens of
Colombia, entered the United States as visitors for pleasure. All remained beyond
their authorized dates, and, in July 2002, the former Immigration and
Naturalization Service (“INS”)1 served them with notices to appear, charging them
with removability pursuant to the Immigration and Nationality Act (“INA”) §
237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B).
Calle filed an application for asylum and withholding of removal under the
INA §§ 208, 241, and withholding of removal under the United Nations
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (“CAT”), 8 C.F.R. § 208.16(c). In her application, Calle indicated that
1
Congress abolished the INS on March 1, 2003, and replaced it with the Department of
Homeland Security. See Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (2002).
2
she sought relief based on the persecution she suffered from the Revolutionary
Armed Forces of Colombia (“FARC”) due to her political opinion and membership
in a particular social group. After holding a removal hearing, the immigration
judge (“IJ”) dismissed Calle’s application for asylum as untimely without a
showing of extraordinary circumstances and denied her applications for
withholding of removal and CAT relief on the merits. Calle appealed the IJ’s
decision to the BIA, arguing that the IJ failed to consider or properly weigh the
evidence, including information regarding the country conditions in Colombia.
See 8 C.F.R. § 208.16(c). The BIA adopted and affirmed the IJ’s decision,
including the IJ’s finding that neither extraordinary nor changed circumstances
excused the untimely filing.
Calle thereafter moved the BIA to reconsider its decision, maintaining that
the BIA had not considered all of the evidence in her case nor the current
conditions in Colombia. She also argued that the changed conditions in Colombia
served as exceptional circumstances for her late filing of her asylum application.
The BIA denied Calle’s motion for reconsideration, finding that Calle had
presented only “a general statement regarding deteriorating conditions, and [had]
not supported [that] statement with any evidence.” (R. Vol. 1 p. 59.)
Calle next filed with the BIA a motion to reopen its denial of her motion for
reconsideration, and she also filed a motion for stay of deportation. Calle argued
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that her motion to reopen was based on changed country conditions. She asserted
that she was a target of the FARC, and that the FARC’s terrorism throughout
Colombia had continued and intensified. In support of her motion to reopen, Calle
submitted the following evidence: (1) a police report that Calle filed in March 2002
alleging the felony of illegal constraint; (2) a letter from her brother attesting to the
terrorism caused by the FARC in Colombia; (3) a June 2005 article from BBC
News detailing a FARC attack on Colombian troops and indicating that the FARC
was still a strong guerrilla army; (4) untranslated consolation cards; (5) a
September 2005 BBC News article indicating that the FARC would remain strong
despite a new Colombian law; (6) an October 2005 BBC News article detailing a
rebel attack on a Colombian town; (7) a January 2006 article from the Toronto Star
detailing a clash between the FARC and the Colombian Army; (8) an April 2005
Human Rights Watch article explaining that the FARC had been ordered to cease
its use of gas cylinder bombs; (9) a July 2005 Miami Herald article indicating that
the FARC was involved in all aspects of Colombian life, including politics,
kidnaping, and drug and weapons trafficking, and that the FARC was involved in
international relations; and (10) a copy of an I-130 petition for alien relative that
Calle’s sister, a United States citizen, filed on Calle’s behalf.
The BIA denied Calle’s motion to reopen, finding that she failed to establish
a prima facie case of eligibility for asylum based upon changed country conditions.
4
The BIA did not consider the consolation cards that Calle submitted as evidence
because those cards were not translated. The BIA further found that the police
report and consolation cards were not new or previously unavailable, as required
for a motion to reopen under 8 C.F.R. § 1003.2(c). The BIA also determined that
Calle’s remaining evidence showed that Colombia remained “a country filled with
civil strife and general conditions of lawlessness despite the peace accords,” but
that the evidence was not enough to warrant reopening Calle’s proceedings. (R.
Vol. 1 p. 25.)
Calle then filed a “motion to reconsider denial of motion to reopen.” Calle
argued that the BIA improperly failed to consider the danger in Colombia that she
would face if forced to return. She maintained that her evidence showed changed
country conditions that put her life in more danger. Calle also submitted translated
copies of the condolence cards, which offered sympathy for the loss of Calle
herself and her son. She additionally submitted three news articles: (1) a 2006
CNN.com article indicating that the FARC had declared war on a smaller guerrilla
group; (2) a May 2006 VOA News article explaining that the Colombian president
blamed the FARC for an attack on an electoral office; and (3) a 2005 article from a
Russian news source detailing the FARC’s killing of police officers.
The BIA denied Calle’s motion to reconsider on the grounds that it was
numerically barred under 8 C.F.R. § 1003.2(b)(2) because Calle previously filed a
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motion to reconsider in the same proceedings. The BIA found that, “[t]he
regulations provide that motions to reconsider shall be limited to one motion to
reconsider in any case previously the subject of a final decision by the [BIA].” (R.
Vol. 1 p. 2.)
Calle argues before this court that the BIA abused its discretion in denying
as numerically barred her motion to reconsider the denial of her motion to reopen.
Calle contends that the instant motion to reconsider was a new motion requesting
the BIA to reconsider its denial of her motion to reopen, as opposed to her first
motion to reconsider requesting that the BIA reconsider its order affirming the IJ’s
initial determination of removability. Thus, she maintains that the instant motion
to reconsider was not a second motion to reconsider the underlying decision to
deny her applications for asylum and withholding of removal.
II. STANDARD OF REVIEW
“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).
III. DISCUSSION
According to the regulations governing numerical limits on motions to
reconsider:
A party may file only one motion to reconsider any given decision and
may not seek reconsideration of a decision denying a previous motion
to reconsider. In removal proceedings pursuant to section 240 of the
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[INA], an alien may file only one motion to reconsider a decision that
the alien is removable from the United States.
8 C.F.R. § 1003.2(b)(2).
Calle filed her original motion to reconsider seeking reconsideration of the
BIA’s affirmance of the IJ’s initial removability determination. Thereafter, Calle
filed a motion to reopen based upon changed country conditions. Calle’s next
motion to reconsider requested the BIA’s reconsideration of its order denying
Calle’s motion to reopen. The BIA found this motion to reconsider numerically
barred. The BIA stated that “[t]he regulations provide that motions to reconsider
shall be limited to one motion to reconsider in any case previously the subject of a
final decision by the [BIA].” (R. Vol. 1 p. 25.)
The BIA’s interpretation of the regulation is broad and extends the language
beyond its plain meaning. The plain language of § 1003.2(b)(2) does not explicitly
prohibit such a filing. In fact, the regulation provides that, where an alien is in
removal proceedings pursuant to INA § 240, which proceedings the INS initiated
against Calle, “an alien may file only one motion to reconsider a decision that the
alien is removable from the United States.” 8 C.F.R. § 1003.2(b)(2) (emphasis
added). The regulation does not provide that an alien may file only one motion to
reconsider throughout her entire proceedings. To the contrary, the regulation’s use
of the singular terms “a decision” and “any given decision” suggests that an alien
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may file a motion to reconsider as to each decision by the BIA that an alien is
removable. Under the language of the regulation, then, we conclude that Calle’s
motion to reconsider the BIA’s denial of her motion to reopen was not numerically
barred because it was the first motion to reconsider that BIA decision.
As to the merits of her motion to reconsider, Calle also argues that her
motion to reopen, and her instant motion to reconsider, provided sufficient
evidence to demonstrate changed country conditions that would have affected her
applications for relief. “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 authority.” 8 C.F.R. § 1003.2(b)(1). However, “[a]
motion that merely republishes the reasons that had failed to convince the tribunal
in the first place gives the tribunal no reason to change its mind.” Ahmed v.
Ashcroft, 388 F.3d 247, 249 (7th Cir.2004). 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. See 8
C.F.R. § 1003.2(b)(1).
Here, the BIA made no determination as to whether Calle’s motion to
reconsider alleged errors of fact or law that the BIA committed in denying her
motion to reopen; rather, the BIA only dismissed Calle’s motion as numerically
barred. The Government nonetheless argues that Calle’s motion to reconsider
8
failed on the merits because her claim that the BIA did not consider the evidence
she submitted in support of her motion to reopen was not supported by the record.
Because the BIA did not address the merits of Calle’s motion to reconsider, we
must determine whether we may decide Calle’s case on the merits in the first
instance, as the Government urges.
The Supreme Court has explained that, in cases on appeal where the BIA has
not addressed a particular issue that a petitioner put before it, “the proper course,
except in rare circumstances, is to remand to the agency for additional
investigation or explanation.” INS v. Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 355
(2002) (per curiam) (quotation omitted). In Ventura, the BIA affirmed an IJ’s
denial of asylum on one ground, but did not address the IJ’s alternative holding
that improved country conditions were such that no realistic threat of persecution
remained. Id. at 13, 123 S. Ct. at 354. On appeal, the Ninth Circuit nonetheless
addressed the merits of the country conditions issue without remand to the BIA.
Id. at 14, 123 S. Ct. at 354. The Supreme Court reversed, holding that the Ninth
Circuit “should have applied the ordinary ‘remand’ rule” because the BIA had “not
yet considered the ‘changed circumstances’ issue.” Id. at 17-18, 123 S. Ct. at 355-
56. The Supreme Court noted that the country report was ambiguous about the
evidence to be considered and that remand could lead to the presentation of further
evidence of current conditions, given that five years had elapsed since the report
9
was written. Id. at 17, 123 S. Ct. at 356.
Similarly, in Gonzales v. Thomas, 547 U.S. 183, 126 S. Ct. 1613 (2006) (per
curiam), the Supreme Court held that the Ninth Circuit erroneously determined an
alternative issue not reached by the BIA rather than remanding to the BIA. Id. at
186-87, 126 S. Ct. at 1614-15. In so holding, the Court noted that it could “find no
special circumstance here that might have justified the Ninth Circuit’s
determination of the matter in the first instance.” Id. at 187, 126 S. Ct. at 1615.
This court has not addressed the applicability of the “rare circumstances”
exception to the “ordinary ‘remand’ rule” in a factual scenario such as the one
presented in this case.2 Recently, the Fourth Circuit faced the issue of whether the
BIA erred in denying a petitioner’s motion to reopen and disposing of his motion
to remand without explicitly addressing the motion to remand. Hussain v.
Gonzales, 477 F.3d 153, 155 (4th Cir. 2007). The court determined that the BIA
had erred in failing to address Hussain’s motion to remand, which motion Hussain
argued was necessary because he was eligible for an adjustment of status, but the
court nonetheless denied Hussain’s petition for review. Id. at 155-56. The court
determined that Hussain’s case fit within the exception to the “ordinary ‘remand’
rule” because Hussain’s case involved a legal question, as opposed to the factual
2
See Hussain v. U.S. Att’y Gen., 229 Fed. Appx. 861, 865 n.5 (finding that case presented
a “rare instance” when remand was unnecessary because petitioner admitted that he would not be
entitled to relief if the matter were remanded to the BIA).
10
questions that were at issue in Ventura and Thomas. Id. at 157. The court then
determined that Hussain was ineligible for relief because he could not establish a
prima facie case for the adjustment of his status, “a legal, not a factual,
conclusion.” Id. at 158. The court therefore held that, “[b]ecause the result of a
remand to the Board is a foregone conclusion such that remand would amount to
nothing more than a mere formality, we find that the Ventura ‘rare circumstances’
exception applies.” Id.3
Calle’s case presents “rare circumstances” such that remand is unnecessary.
3
Other circuits have determined that Ventura does not require automatic remand at the
finding of an error by the BIA. See, e.g., Ghebremedhin v. Ashcroft, 392 F.3d 241, 242-43 (7th
Cir.2004) (stating that it is not usurping the BIA’s fact-finding role by reversing the IJ’s
eligibility determination instead of remanding to the BIA because the determination is contrary
to the law); Almaghzar v. Gonzales, 457 F.3d 915, 923 n.11 (9th Cir. 2006) (concluding that the
BIA had decided the merits of the petitioner’s CAT claim and determining that neither Ventura
nor Thomas require the circuit courts to “remand an issue to the agency when the agency has
already considered the issue,” the court deferred to the BIA’s finding and denied the petition for
review), cert. denied, 127 S. Ct. 1839 (2007); Zhao v. Gonzales, 404 F.3d 295, 305, 310-11 (5th
Cir.2005) (granting the petition for review and remanding to the BIA as to the BIA’s denial of
the petitioner’s asylum application and motion to reopen, but refusing to remand as to the
question of persecution because the BIA had already decided the issue).
11
In this case, unlike Ventura and Thomas, and like Hussain, the undecided issue is
legal, not factual. Moreover, unlike Hussain, the legal issue in this case is
procedural. The issue the BIA avoided with its numerical-bar holding was whether
Calle specified “errors of fact or law in the prior [BIA] decision” and supported the
motion with pertinent authority. 8 C.F.R. § 1003.2(b)(1). Deciding whether Calle
met those requirements is not an inquiry upon which the BIA could “bring its
expertise to bear . . . evaluate the evidence . . . make an initial determination [and,
thereby] help a court later determine whether its decision exceeds the leeway that
the law provides.” Thomas, 547 U.S. at 186-87, 126 S. Ct. at 1615 (quoting
Ventura, 537 U.S. at 17, 123 S. Ct. at 353). It is rather an objective, procedural
inquiry: she either specified errors and supported them with pertinent authority, or
she did not. Thus, in these “rare circumstances,” we feel comfortable deciding the
issue left unresolved by the BIA in the first instance.
In her motion to reconsider the BIA’s denial of her motion to reopen, Calle
argued that the evidence she submitted in support of her motion to reopen
established that there were changed country conditions that would put her life in
danger in Colombia. She also submitted translated copies of the consolation cards
and three news articles that described the FARC’s presence in Colombia.
However, her arguments offered nothing more that reiteration of her assertions in
her motion to reopen. These were issues the BIA already had considered.
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Moreover, the consolation cards were not linked in any way to the FARC’s
presence in Colombia or its prosecution of Calle, nor did her three news articles
offer any further evidence than that already presented in Calle’s numerous articles
that she submitted in support of her motion to reopen. Accordingly, Calle did not
adequately specify errors of fact or law in the BIA’s denial of Calle’s motion to
reopen. See 8 C.F.R. § 1003.2(b)(1).
Despite the BIA’s erroneous determination that Calle’s motion to reconsider
the BIA’s denial of her motion to reopen was numerically barred, we deny Calle’s
petition for review because her arguments in her motion to reconsider are
meritless.
PETITION FOR REVIEW DENIED.
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