Ronald Soza v. U.S. Attorney General , 360 F. App'x 77 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 7, 2010
No. 09-11813 JOHN P. LEY
Non-Argument Calendar ACTING CLERK
________________________
Agency Nos. A078-343-867, A078-343-868
RONALD SOZA,
MARICELA SOZA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 7, 2010)
Before BARKETT, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Ronald Soza, the lead petitioner, and Maricela Soza, his wife and a
derivative beneficiary on his application for relief under the Nicaraguan
Adjustment and Central American Relief Act (“NACARA”), seek review of the
Board of Immigration Appeal’s (“BIA”) order denying Soza’s motion to
reconsider its denial of his motion to reopen his removal proceedings.
Soza originally appealed to the BIA the Immigration Judge’s (“IJ”) denial of
his request for relief under NACARA and for voluntary departure. The BIA
affirmed the IJ’s determination as to NACARA, but reversed as to voluntary
departure and remanded for further proceedings. Upon remand, the IJ granted
Soza voluntary departure, which he did not appeal. Nearly three years later, Soza
sought to re-open his removal proceedings with the BIA, arguing that he had
presented sufficient evidence to demonstrate eligibility for relief under NACARA.
In its order denying Soza’s motion to reopen, the BIA concluded that it lacked
jurisdiction over Soza’s removal proceedings because it previously had remanded
his case to the IJ. Soza sought reconsideration of that decision, which the BIA
denied again finding that it lacked jurisdiction and that Soza failed to show any
error in its determination.
As an initial matter, we have jurisdiction to review only the BIA’s order
denying Soza’s motion for reconsideration of the BIA’s order denying his request
to re-open his case. See 8 U.S.C. § 1252(b)(1); INA § 240(b)(1) (providing that a
petition for judicial review must be filed within 30 days of the final order of
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removal). Soza never timely sought review in this Court of the BIA’s prior order
denying his request for relief under NACARA and its subsequent order denying his
request to re-open his case before the BIA.1
We review the BIA’s denial of a motion for reconsideration for abuse of
discretion. Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1252 (11th Cir.), cert.
denied, 129 S. Ct. 146 (2008). An alien may file one motion for reconsideration of
a decision that he is removable from the United States. 8 U.S.C. § 1229a(c)(6)(A);
INA § 240(c)(6)(A). The motion for reconsideration “shall specify the errors of
law or fact in the previous order and shall be supported by pertinent authority.”
8 U.S.C. § 1229a(c)(6)(C); INA § 240(c)(6)(C).
In support of his motion for reconsideration, Soza asserted that the BIA
retained jurisdiction over the portion of his removal proceedings he sought to re-
open (his request for adjustment of status under NACARA) and that the BIA erred
when it concluded otherwise in addressing his motion to re-open. Soza has not
provided any authority in support of his claim that the BIA erred in determining
1
To the extent that Soza challenges the BIA’s affirmance in 2006 of the IJ’s denial of his
request for adjustment to legal permanent resident status under NACARA because he failed to
establish the physical presence requirement, we are without jurisdiction to address this claim.
See Ortega v. U.S. Att’y. Gen., 416 F.3d 1348, 1350 (11th Cir. 2005) (holding that the
“unequivocal language” of the NACARA statute precludes judicial review of the determination
as to whether to adjust the status of an applicant under this statute); Frech v. U.S. Att’y. Gen.,
491 F.3d 1277, 1280-81 (11th Cir. 2007) (holding that this Court retains jurisdiction to review
constitutional questions arising under NACARA); see also § 1252(b)(1) (a petition for review of
a final order of removal must be filed within thirty days).
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that it lacks jurisdiction, which is required when filing a motion to reconsider.
Instead, as the government points out, BIA precedent holds that when the BIA
“remands a case to an immigration judge for further proceedings, it divests itself of
jurisdiction of that case unless jurisdiction is expressly retained.” Matter of Patel,
16 I. & N. Dec. 600, 601 (1978). Here, the BIA ordered that Soza’s case be
“remanded for further proceedings consistent with this order” and did not expressly
retain jurisdiction. Furthermore, as the BIA has recently noted, upon remand an IJ
“has authority to consider additional evidence if it is material, was not previously
available, and could not have been discovered or presented at the former hearing
and would support a motion to re-open.” Matter of M-D-, 24 I. & N. 138, 141-42
(2007). Thus, because jurisdiction was properly before the IJ, Soza was required to
present any new evidence that he obtained in support of his request for relief under
NACARA in a motion to re-open before the IJ and not the BIA.
Accordingly, the BIA did not abuse its discretion when it denied Soza’s
motion for reconsideration.
PETITION DENIED.
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