Lina Rocio Osorio v. U.S. Attorney General , 213 F. App'x 855 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 8, 2007
No. 06-13744 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A79-505-927 & A79-505-928
LINA ROCIO OSORIO,
DANIEL ALBERTO PARRA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 8, 2007)
Before BIRCH, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Colombian natives and citizens Lina Rocio Osorio and her husband, Daniel
Alberto Parra, petition for review of the decision of the Board of Immigration
Appeals (“BIA”) denying their motion to reconsider its previous decision
dismissing their appeal from the Immigration Judge’s (“IJ”) order of removal and
denial of asylum and withholding of removal under the Immigration and
Nationality Act (“INA”) and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(“CAT”). Osorio and Parra challenge both of the BIA’s orders on the ground that
the IJ’s decision was in error, as they established eligibility for asylum and
withholding of removal due to persecution by the Revolutionary Armed Forces of
Colombia (“FARC”). The government argues that we lack jurisdiction to review
the BIA’s decision on the petitioners’ appeal from the IJ’s order because the
petition for review is untimely. For the reasons set forth more fully below, we
dismiss the petition, in part, and deny the petition, in part.
As an initial matter, to the extent that the petitioners challenge the BIA’s
initial order dismissing their appeal, we lack jurisdiction. We review subject-
matter jurisdiction de novo. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1373 (11th
Cir. 2006). In order to review a final order of removal, the petition for review must
be filed no later than 30 days after the date of the order. 8 U.S.C. § 1252(a)(1),
(b)(1), INA § 242(a)(1), (b)(1). “[T]he statutory limit for filing a petition for
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review in an immigration proceeding is ‘mandatory and jurisdictional,’ [and,
therefore,] it is not subject to equitable tolling.” Dakane v. U.S. Att’y Gen., 399
F.3d 1269, 1272 n.3 (11th Cir. 2005) (quoting Stone v. INS, 514 U.S. 386, 405,
115 S.Ct. 1537, 1549, 131 L.Ed.2d 465 (1995)). The finality of a removal order is
not affected by the filing of a motion to reconsider. Stone, 514 U.S. at 405, 115
S.Ct. at 1549.
The BIA’s April 13, 2006 order, which affirmed the IJ’s decision, was a
final order of removal. See 8 C.F.R. § 1241.1(a). Because the petitioners did not
file their petition for review until July 7, 2006, more than 30 days later, their
petition was not timely and, therefore, we lack jurisdiction to address the merits of
the BIA’s decision affirming the IJ’s denial of the petitioners’ request for asylum,
withholding of removal, and CAT relief. See 8 U.S.C. § 1252(b)(1); Dakane, 399
F.3d at 1272 n.3; Stone, 514 U.S. at 405, 115 S.Ct. at 1549. However, as the
petition for review is timely as to the BIA’s denial of reconsideration, we have
jurisdiction to review that order. See 8 U.S.C. § 1252(b)(1); Dakane, 399 F.3d at1272 & n.3.
We review the denial of motions to reconsider for abuse of discretion.
Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). A 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
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§ 240(c)(6)(c); see also 8 C.F.R. § 1003.2(b)(1) (same). “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).
When denying the motion to reconsider, the BIA found that it had
considered the arguments made in the motion before it rendered its initial decision
and declined to revisit them. The petitioners do not challenge the BIA’s finding
that it considered the arguments made in their motion when it decided their appeal
from the IJ’s decision. Instead, their claim of error is premised on generalized
arguments as to the merits of their application for asylum and withholding of
removal. A review of the petitioners’ notice of appeal, brief to the BIA, and
motion for reconsideration shows that the petitioners’ arguments in their motion
for reconsideration were not substantively different than their previous arguments.
In both instances, the petitioners argued that the evidence demonstrated that they
had suffered past persecution by the FARC, had a well-founded fear of future
persecution, and could not internally relocate within Colombia or return there
because of a threat to their lives. The only law cited in the petitioners’ motion for
reconsideration was our decision in Arboleda v. U.S. Attorney General, 434 F.3d
1220 (11th Cir. 2006), which formed the basis for their argument that they could
not internally relocate. However, in its initial decision, the BIA had relied on
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Arboleda to reject the IJ’s finding that the petitioners could relocate internally.
Under these circumstances, we hold that the BIA did not abuse its discretion by
denying the petitioners’ motion to reconsider because the BIA already found in the
petitioners’ favor with respect to their claim of legal error as to the IJ’s internal
relocation finding and the petitioners otherwise merely reargued the merits of their
already-rejected claims.
In light of the foregoing, the petition for review is
DISMISSED, IN PART, AND DENIED, IN PART.
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