Lola Mendez-De Vasquez v. U.S. Atty. General ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14731 ELEVENTH CIRCUIT
JUNE 2, 2010
Non-Argument Calendar
________________________ JOHN LEY
CLERK
Agency Nos. A098-649-739, A098-649-741
LOLA MENDEZ-DE VASQUEZ,
HEIDY XIOMARA VASQUEZ-MENDEZ,
XENIA MARIA VASQUEZ-MENDEZ,
MARLON LEONEL MENDEZ-CHACON,
YESSENIA LISSETH CHACON-MENDEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 2, 2010)
Before TJOFLAT, BIRCH and KRAVITCH, Circuit Judges.
PER CURIAM:
The Petitioners, Lola Mendez De Vasquez and members of her family,1 seek
review of an order by the Board of Immigration Appeals (“BIA”) denying their
motion to reconsider a 2008 order denying asylum and withholding of removal.
After thorough consideration of the parties’ arguments and the record, we DENY
the petition for review.
I. BACKGROUND
We previously denied a petition for review of the BIA’s 2008 order. See
Mendez-De Vasquez v. U.S. Att’y Gen., 345 Fed. Appx. 441 (11th Cir. 2009) (per
curiam) (unpublished). Our earlier decision outlined in detail the Petitioners’
claims for asylum and withholding of removal. See id. at 443-44. In brief, the
Petitioners alleged that a criminal gang called the Mara Salvatrucha (“Maras”)
persecuted them in their native country of El Salvador on account of their political
opinion and membership in a particular social group. Id. at 443. Following an
evidentiary hearing, the Immigration Judge (“IJ”) denied asylum and withholding
of removal under the Immigration and Nationality Act (“INA”) and the
Convention Against Torture (“CAT”). Id. The BIA affirmed in December 2008
1
Lola Mendez De Vasquez is the mother of petitioners Heidy Xiomara Vasquez-Mendez
and Xenia Maria Vasquez-Mendez, and the aunt of petitioners and Marlon Leonel Mendez-
Chacon and Yessenia Lisseth Chacon-Mendez .
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on the ground that “‘the alleged events do not rise to the level of past persecution
on account of a protected ground.’” Id. In support of that decision, the BIA cited,
among other cases, Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 2008) and Matter
of E-A-G-, 24 I. & N. Dec. 591 (BIA 2008).
While their first petition for review was pending before us, the Petitioners
filed a motion to reconsider with the BIA. The BIA denied the motion on 21
August 2009. Although the Petitioners “essentially reiterate[d] the arguments
previously advanced,” the BIA reviewed its prior decision and again concluded
that the record supported the IJ’s findings and conclusions. Administrative
Record (“AR”) at 2. In particular, the BIA clarified that it accepted the IJ’s
finding that one of the Petitioners had been raped. Nevertheless, the BIA
concluded that the evidence, including the testimony by the Petitioners and the
expert on country conditions, “is insufficient to demonstrate past persecution, or a
well founded fear of persecution, on account of political opinion or membership in
a particular social group.” Id. Consequently, the BIA concluded that the
Petitioners failed to satisfy their burden of proof for asylum or withholding of
removal under the INA. The BIA again determined the Petitioners were ineligible
for CAT relief as well.
On 8 September 2009, we issued our decision denying a petition for review
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of the BIA’s December 2008 order denying relief. See Mendez-De Vasquez, 345
Fed. Appx. at 441, 443. We concluded that the Maras committed private acts of
violence against the Petitioners based on their refusal to join the Maras gang,
rather than on account of the Petitioners’ actual or imputed political opinion. See
id. at 445. Additionally, we agreed with the BIA that the Petitioners’ proposed
social group – “poor girls who come from fatherless homes, with no adult male
protective figures . . . who resist recruitment or criticize the Maras,” and their
family members – was not cognizable under the INA. Id. at 446. We further
rejected the Petitioners’ attempt to distinguish their case from Matter of S-E-G-
and Matter of E-A-G-. See id. at 447. Because the Petitioners failed to establish
their eligibility for asylum, we concluded that they were also ineligible for
withholding of removal under the INA.2 Id. at 447-48.
In their current petition for review, the Petitioners contend the BIA
erroneously determined, without citing any case law, that the Maras’ persecution
was not on account of the Petitioners’ political opinion or their membership in a
particular social group. The Petitioners argue that sufficient evidence in the
record established their eligibility for asylum and withholding of removal under
2
The Petitioners did not raise on appeal the BIA’s denial of CAT relief, and we therefore
deemed this issue abandoned. See id. at 444. n.1.
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the INA.3 Additionally, the Petitioners submit that the BIA abused its discretion
by failing to address their argument that their case was distinguishable from
Matter of S-E-G- and Matter of E-A-G-.
II. DISCUSSION
Our review of the BIA’s denial of a motion to reconsider is limited to an
abuse of discretion. See Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir.
2007). A motion to reconsider must do more than regurgitate prior arguments
made to the BIA. See id. at 1329. Instead, the motion must identify specific
factual or legal errors in the BIA’s decision. See id.Under the “law of the case” doctrine, an appellate court’s factual findings
and legal conclusions are “generally binding in all subsequent proceedings in the
same case in the trial court or on a later appeal.” Mega Life and Health Ins. Co. v.
Pieniozek, 585 F.3d 1399, 1405 (11th Cir. 2009) (quotation marks and citation
omitted). The exceptions to this rule are when: “(1) a subsequent trial produces
substantially different evidence; (2) controlling authority has since made a
contrary decision of law applicable to that issue; or (3) the prior decision was
clearly erroneous and would work a manifest injustice.” Id. (quotation marks and
3
The Petitioners do not challenge the BIA’s denial of their motion to reconsider with
respect to their CAT claim. Accordingly, they have abandoned this issue. See Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam).
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citation omitted).
We find no abuse of discretion here. The BIA correctly determined that the
Petitioners’ motion to reconsider essentially presented the same legal arguments
that were raised on direct appeal to the BIA – namely, that the Petitioners had been
persecuted on account of their political opinion and membership in a particular
social group. In response to the Petitioners’ contention that the BIA had failed to
consider adequately all the evidence, the BIA again reviewed the record and
determined that the evidence, including the testimony of the Petitioners and the
country expert, did not support a finding of past or future persecution on account
of a protected ground. The absence of caselaw in the BIA’s order denying the
motion to reconsider does not constitute an abuse of discretion. The BIA
specifically referenced its December 2008 order, which contained numerous
citations to federal statutes and supporting precedent. To the extent that the
Petitioners reassert in their petition to us that the evidence merits a grant of asylum
or withholding of removal, we are bound by our prior decision rejecting those
claims, as none of the exceptions to the law of the case doctrine apply. See
Pieniozek, 585 F.3d at 1405.
We also find no merit to the Petitioners’ contention that the BIA ignored
their argument that Matter of S-E-G- and Matter of E-A-G- were distinguishable
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from their case. The BIA stated that it had reviewed its decision “in light of the
[Petitioners’] multiple appellate and motion arguments,” but it found those
arguments unpersuasive. AR at 2. The BIA then reaffirmed that the Petitioners
had not established their claims and cited the portions of its 2008 order which
relied upon Matter of S-E-G- and Matter of E-A-G-. Thus, the BIA considered the
Petitioners’ arguments but rejected them. Moreover, the Petitioners raised these
same arguments concerning Matter of S-E-G- and Matter of E-A-G- in their first
petition for review to us, but we found “no meaningful distinction between the
BIA’s precedent and the case before us.” Mendez-De Vasquez, 345 Fed. Appx. at
447. Accordingly, we are bound by that decision. See Pieniozek, 585 F.3d at
1405.
As a final matter, the Petitioners suggest for the first time that Matter of S-
E-G- may no longer be binding precedent because the BIA reopened the case,
remanded it to the immigration court, and issued an unpublished decision. We
lack jurisdiction to review this claim, however, because the Petitioners failed to
exhaust their administrative remedies. See Amaya-Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam). “[A]bsent a cognizable excuse
or exception, we lack jurisdiction to consider claims that have not been raised
before the BIA.” Id. (quotation marks and citation omitted). According to the
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Petitioners, the BIA issued its unpublished decision in Matter of S-E-G- on 28
July 2009, which was several weeks before the BIA denied the Petitioners’ motion
to reconsider on 21 August 2009. The Petitioners proffer no excuse or exception
as to why they did not raise this claim to the BIA in their pending motion to
reconsider. Accordingly, “we lack jurisdiction to consider it under the clear
dictates of circuit precedent.” Id.III. CONCLUSION
Based on the foregoing, we conclude that the BIA did not abuse its
discretion in denying the Petitioners’ motion to reconsider. Accordingly, we
DENY the petition for review.
PETITION DENIED.
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