Moyses De Andrade Machado v. U.S. Attorney General , 630 F. App'x 941 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10549
Non-Argument Calendar
________________________
Agency No. A200-650-885
MOYSES DE ANDRADE MACHADO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 30, 2015)
Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Moyses de Andrade Machado, a native and citizen of Brazil proceeding pro
se, seeks review of an order of the Board of Immigration Appeals (“BIA”) denying
his second motion to reopen and reconsider. After careful review, we deny the
petition for review.
Machado was ordered removed from the United States for having remained
for a time longer than permitted. During removal proceedings before an
immigration judge (IJ), Machado applied for cancellation of removal. See 8 U.S.C.
§ 1229b(b)(1). The IJ found Machado ineligible for cancellation of removal
because he had been convicted of an offense that the IJ determined was a crime
involving moral turpitude: grand theft in the third degree, Fla. Stat.
§ 812.014(1)(a). See 8 U.S.C. § 1229b(b)(1)(C).
In an appeal to the BIA, Machado contended that he was eligible for
cancellation of removal due to the “petty-offense exception,”1 despite his
conviction for a crime involving moral turpitude. On December 13, 2013, the BIA
dismissed Machado’s appeal. The BIA disagreed that the petty-offense exception
applied but also found that Machado would be ineligible for cancellation of
removal even if it did. Because Machado had not shown that he was eligible, the
BIA did not address the other requirements for cancellation of removal, including
1
An alien is eligible to apply for cancellation of removal despite a conviction for a crime
involving moral turpitude if the maximum penalty for the crime of conviction did not exceed one
year’s imprisonment and the actual sentence received did not exceed six months’ imprisonment.
See 8 U.S.C. § 1182(a)(2)(A)(ii)(II).
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good moral character and whether his removal would result in exceptional and
extremely unusual hardship to a United States citizen relative. See 8 U.S.C.
§ 1229b(b)(1)(D).
On January 8, 2014, Machado filed a timely motion to reopen and reconsider
the BIA’s decision. He contended that the petty-offense exception applied and that
his children would suffer hardship due to his removal. On February 6, 2014, the
BIA denied the motion to reconsider because the same arguments had been
addressed in the BIA’s initial decision, and it found no basis to reopen proceedings
because Machado had not submitted any new evidence. 2
On October 1, 2014, Machado filed another motion to reopen and
reconsider, largely raising the same arguments as before. The BIA denied the
motion on January 12, 2015. As a motion to reconsider, the BIA found that it was
untimely and barred by regulation. As a motion to reopen, the BIA found that it
was untimely and failed to present new evidence. Finally, the BIA declined to
exercise its sua sponte authority to reconsider or reopen removal proceedings. See
8 C.F.R. §1003.2(a). Machado now brings this petition for review.
We review the BIA’s denial of motions to reopen and to reconsider for abuse
of discretion. See Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007);
Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007). We liberally construe
2
Machado petitioned this Court for review of the BIA’s February 6 decision. We
dismissed the petition for lack of jurisdiction because it was untimely.
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pleadings filed by pro se parties. See Lorisme v. I.N.S., 129 F.3d 1441, 1444 n.3
(11th Cir. 1997).
A motion to reconsider a final order of removal must be filed within thirty
days of the date of the order. 8 U.S.C. § 1229a(c)(6). Only one motion to
reconsider may be filed, id. § 1229a(c)(6)(A), and a party may not seek
reconsideration of a decision denying a previous motion to reconsider, 8 C.F.R.
§ 1003.2(b)(2). “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). A motion that simply
rehashes arguments previously rejected by the BIA does not present grounds for
reconsideration. Calle, 504 F.3d at 1329.
An alien may also file one motion to reopen, which must be filed within
ninety days of the date of the final order of removal. 8 U.S.C. § 1229a(c)(7)(C). A
motion to reopen must be “supported by affidavits or other evidentiary material,
and it must state new facts that will be proven at a hearing to be held if the motion
is granted.” Verano-Velasco v. U.S. Att’y Gen., 456 F.3d 1372, 1376 (11th Cir.
2006); see 8 U.S.C. § 1229a(c)(7)(A)-(B).
The BIA also has authority to reopen or reconsider a case at any time on its
own motion. 8 C.F.R. § 1003.2(a). But because there is no “meaningful standard
against which to judge” the BIA’s exercise of this discretionary authority, we lack
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jurisdiction to review the BIA’s refusal to reopen or reconsider sua sponte. Lenis
v. U.S. Att’y Gen., 525 F.3d 1291, 1293-94 (11th Cir. 2008).
Here, the BIA did not abuse its discretion when it denied Machado’s motion
for reconsideration. Machado’s October 2014 motion was untimely filed well over
thirty days after the BIA’s February 2014 decision, and he has presented no
explanation for the delay. See 8 U.S.C. § 1229a(c)(6)(B). To the extent Machado
moved to reconsider the BIA’s denial of his previous motion to reconsider, he was
prohibited by regulation from doing so. See 8 C.F.R. § 1003.2(b)(2).
The BIA also did not abuse its discretion when it denied Machado’s second
motion to reopen, because, like his motion to reconsider, it was untimely, as it was
filed well beyond the ninety-day time limit. See 8 U.S.C. § 1229a(c)(7)(C).
Further, Machado failed to present new facts and new evidence that were not
available and could not have been presented at his hearing. As the BIA noted, the
psychological report he attached to his motion was available before his underlying
merits hearing and had been submitted to the IJ.
Finally, to the extent that Machado’s arguments could be construed as
challenging the BIA’s decision not to reopen or reconsider sua sponte, we do not
have jurisdiction to review that determination. See Lenis, 525 F.3d at 1293-94.
In sum, we DENY Machado’s petition for review.
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