Tereza Leon-Jesus v. U.S. Attorney General , 332 F. App'x 536 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 14, 2009
No. 08-16020 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A029-978-167
TEREZA LEON-JESUS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 14, 2009)
Before TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Tereza Leon-Jesus, a citizen of Guatemala, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order denying her motion for reconsideration of
its previous order dismissing her appeal of the Immigration Judge’s (“IJ”) removal
order. The IJ found Leon-Jesus removable based on her aggravated battery
conviction and denied her application for special rule cancellation of removal
under the Nicaraguan Adjustment and Central American Relief Act of 1997, Pub.
L. No. 105-100, § 203(b), 111 Stat. 2160, 2198-99. After review, we dismiss in
part and deny in part the petition for review.
To the extent Leon-Jesus seeks review of the BIA’s final removal order, the
denial of her application for special rule cancellation of removal, and the denial of
her motion to remand to the IJ, we lack jurisdiction to review these claims because
Leon-Jesus did not petition for review within 30 days of the date of the BIA’s July
28, 2008 order. See Immigration and Nationality Act (“INA”) § 242(b)(1), 8
U.S.C. § 1252(b)(1); Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th
Cir. 2005). However, Leon-Jesus’s October 23, 2008 petition for review was filed
in time to confer jurisdiction to review the BIA’s September 25, 3008 order
denying Leon-Jesus’s motion for reconsideration.
We review the BIA’s denial of a motion for reconsideration for an 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
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capricious.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005)
(quotation marks omitted); see also 8 C.F.R. § 1003.2(a) (“The decision to grant or
deny a motion to reopen or reconsider is within the discretion of the [BIA] . . . .”).
A properly presented 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); see also INA
§ 240(c)(6), 8 U.S.C. § 1229a(c)(6). However, “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.” Calle v. U.S. Att’y Gen.,
504 F.3d 1324, 1329 (11th Cir. 2007) (alteration in original) (quotation marks
omitted).
We find no abuse of discretion here. Leon-Jesus’s motion for
reconsideration merely reasserted her earlier argument in support of her motion to
remand about her aggravated battery conviction. The only difference between the
original request for remand and the motion for reconsideration was that Leon-Jesus
attached additional documents to support her argument.1 Thus, we cannot say that
the BIA’s decision was arbitrary or capricious.
1
Leon-Jesus does not challenge the BIA’s alternative treatment of her motion to
reconsider as a motion to reopen, which the BIA also denied. Accordingly, Leon-Jesus has
waived any argument regarding the denial of a motion to reopen. See Sepulveda v. U.S. Att’y
Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (stating that issues not argued on appeal are
deemed abandoned).
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We also reject Leon-Jesus contention that the denial of her motion for
reconsideration violated her due process rights. Although aliens in removal
proceedings are entitled to due process protection, Sebastian-Soler v. U.S. Att’y
Gen., 409 F.3d 1280, 1287 n.14 (11th Cir. 2005), they “do not enjoy a
constitutionally protected liberty interest in a purely discretionary form of relief,”
Garcia v. Att’y Gen., 329 F.3d 1217, 1224 (11th Cir. 2003).
Accordingly, the petition for review is dismissed as to the BIA’s July 28,
2008 order and denied as to the BIA’s September 25, 3008 order.
PETITION DISMISSED IN PART AND DENIED IN PART.
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