Juan C. Rua-Cano v. U.S. Atty. General ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 21, 2006
No. 05-14887
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A95-900-933
and A95-900-934
JUAN CAMILO RUA-CANO,
CLAUDIA MARCELA ALVAREZ-OSPINA,
ANDRES CAMILO RUA-ALVAREZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 21, 2006)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Juan Camilo Rua-Cano and Claudia Marcela Alvarez-Ospina, a married
couple who are both natives and citizens of Colombia, and their son Andres
Camilo Rua-Alvarez, a native and citizen of Panama, (collectively, “the
petitioners”), through counsel, petition for review of (1) the Board of Immigration
Appeals’ (“BIA”) initial order adopting in part and affirming the Immigration
Judge’s (“IJ”) removal order and denying their claims for asylum and withholding
of removal under the Immigration and Nationality Act (“INA”) and protection
under the United Nations Convention on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (“CAT”), and (2) the BIA’s order denying
their motion to reopen or reconsider. In their petition for review, the petitioners
argue that the BIA erred in affirming the IJ’s order because they had demonstrated
past persecution and a well-founded fear of future persecution.
We are “obligated to inquire into subject-matter jurisdiction sua sponte
whenever it may be lacking.” Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir.
2004) (quotation omitted). We have jurisdiction only over a “final order of
removal,” so long as the petition for review is filed within 30 days. 8 U.S.C.
§ 1252(a)(1) & (b)(1). The BIA’s dismissal of the petitioners’ appeal in its initial
order was a final order of removal. See 8 C.F.R. § 1241.1(a). The petitioners’
motion to reconsider did not toll the limitations period for filing a petition for
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review of the final order of removal. See Stone v. INS, 514 U.S. 386, 394-95, 115
S. Ct. 1537, 1543-44, 131 L. Ed. 2d 465 (1995).
Because the petitioners did not file their petition for review until September
6, 2005, more than 30 days after the BIA’s initial order dated May 20, 2005, their
petition was not timely, and we lack jurisdiction to review this order. See 8 U.S.C.
§ 1252(b)(1). Accordingly, to the extent that the petitioners are seeking review of
the BIA’s initial order, the petition for review is dismissed, in part, for lack of
jurisdiction.
Because the petition for review is timely with respect to the BIA’s order
denying the petitioners’ motion to reopen or reconsider, which constitutes a
separate final order, we have jurisdiction to review that order. See Stone, 514 U.S.
at 394-95, 115 S. Ct. at 1543-44.
We conclude that the petitioners have abandoned any claims they may have
had regarding that order by failing to raise any argument concerning the denial of
their motion to reopen or reconsider in their brief. See Sepulveda v. U.S. Attorney
Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam). The petitioners’ brief
contains no law relevant to a motion to reopen or a motion to reconsider, and there
is no argument as to why the BIA’s denial of the petitioners’ motion was
erroneous. In addition, although the IJ considered petitioners’ asylum application
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on the merits, it also found that the application was untimely. The BIA affirmed
this finding, and we therefore have no jurisdiction over any challenge to the denial
of the asylum application. See Chacon-Botero v. U.S. Attorney Gen., 427 F.3d
954, 957 (11th Cir. 2005) (per curiam). Furthermore, even if we had jurisdiction
and petitioners had not abandoned their arguments, the BIA did not abuse its
discretion in denying the motion because petitioners have failed to demonstrate
that they had any new material evidence that was not considered by the IJ and
reviewed by the BIA and have failed to establish that the BIA made any errors of
fact or law in its prior decision. See Assa’ad v. U. S. Attorney Gen., 332 F.3d
1321, 1341 (11th Cir. 2003); Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir.
2001); 8 C.F.R. § 1003.2. Accordingly, the petition for review is denied, in part.
PETITION DISMISSED in part, and DENIED in part.
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