USCA11 Case: 22-12244 Document: 21-1 Date Filed: 05/23/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12244
Non-Argument Calendar
____________________
SATTORJON BAROTOV,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A209-389-829
____________________
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2 Opinion of the Court 22-12244
Before JORDAN, GRANT, and BLACK, Circuit Judges.
PER CURIAM:
Sattorjon Barotov, a native and citizen of Uzbekistan, seeks
review of a decision of the Board of Immigration Appeals (BIA)
denying his motion for reconsideration of its previous final order
of removal. The Government, in turn, moves for summary dispo-
sition, asserting we should dismiss his petition in part and deny it
in part.
I. BACKGROUND
Barotov applied for admission to the United States in 2016.
The Department of Homeland Security (DHS) later issued him a
notice to appear, charging him with being removable under
8 U.S.C. § 1181(a). Barotov, proceeding pro se, then applied for
asylum and withholding of removal, and relief under the United
Nations Convention Against Torture or Other Forms of Cruel, In-
human, or Degrading Treatment or Punishment, (CAT),
8 C.F.R.
§ 1208.16(c). An Immigration Judge (IJ) denied his applications af-
ter a hearing, however, finding he did not suffer past persecution
and did not have a well-founded fear of future persecution based
on his ethnicity or political opinion.
Barotov administratively appealed that decision, but the BIA
dismissed his appeal in 2021. Barotov did not seek judicial review
of that decision. Instead, Barotov later filed a motion for reconsid-
eration with the BIA. In support, he requested the BIA reconsider
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22-12244 Opinion of the Court 3
the dismissal of his appeal, grant him relief, or remand the case to
the IJ for further proceedings.
In 2022, the BIA denied Barotov’s motion for reconsidera-
tion in a second written opinion. The BIA found Barotov had
merely raised the same or similar arguments he raised in his prior
brief on appeal, which it had found unpersuasive during the initial
appeal. Accordingly, it found Barotov had not identified a basis for
reconsideration. It also concluded its prior opinion had fully con-
sidered Barotov’s arguments and correctly concluded he was not
eligible for the relief he sought. It found Barotov had not argued
or demonstrated a review of his appeal by a three-member panel
of the BIA was appropriate. It also noted it had found Barotov’s
CAT claim waived in his initial appeal, and Barotov had not argued
it had erroneously considered that issue to have been waived, so
the CAT claim was not before it.
Barotov timely filed a petition for review of the BIA’s June
2022 order. In his petition for review, Barotov asserts the BIA erred
in finding, in connection with his original proceeding, that he did
not suffer past persecution and did not have a well-founded fear of
future persecution based on his ethnicity or political opinion. This
prompted the Government to move for summary disposition.
II. DISCUSSION
A. BIA’s 2021 Decision
“[T]o seek judicial review of [a prior BIA] order, [a peti-
tioner] must have filed a petition with [this] Court within 30 days
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4 Opinion of the Court 22-12244
of the issuance of that order.” Gaksakuman v. U.S. Att’y Gen.,
767
F.3d 1164, 1168 (11th Cir. 2014) (citing
8 U.S.C. § 1252(b)(1)). A
statutory provision that specifies the timing of judicial review for
immigration proceedings is jurisdictional, and not subject to equi-
table tolling. Stone v. I.N.S.,
514 U.S. 386, 405 (1995). “[T]he filing
of a motion to reopen or a motion to reconsider shall not stay the
execution of any decision made in the case.”
8 C.F.R. § 1003.2(f).
In addition, “the filing of the reconsideration motion does not toll
the time to petition for review.” Stone,
514 U.S. at 395.
As an initial matter, to the extent Barotov seeks to challenge
the BIA’s 2021 decision and final order of removal directly, we lack
jurisdiction.1 See Bing Quan Lin v. U.S. Att’y Gen.,
881 F.3d 860,
870 (11th Cir. 2018) (stating we lack jurisdiction to “review earlier
trips through immigration proceedings”). “[T]o seek judicial re-
view of [that] order,” Barotov was required to “have filed a petition
with [this] Court within 30 days of the issuance of that order,” but
he did not do so. Gaksakuman,
767 F.3d at 1168. Thus, we dismiss
his petition in this respect.
1 We review de novo our subject matter jurisdiction over a petition for re-
view. Indrawati v. U.S. Att’y Gen.,
779 F.3d 1284, 1297 (11th Cir. 2015).
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22-12244 Opinion of the Court 5
B. Denial of Motion to Reconsider 2
A non-citizen may move to reconsider a decision that the
alien is removable from the United States. 8 U.S.C. § 1229a(c)(6).
The motion must be filed within 30 days of the entry of the final
order of removal, and “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)(B), (C). “However, [a] motion that merely re-
publishes the reasons that had failed to convince the tribunal in the
first place gives the tribunal no reason to change its mind,” and
“[t]herefore, 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) (quoting C.F.R.
§ 1003.2(b)(1)).
First, because Barotov asserts in his brief, without argument,
that the BIA erred in failing to assign his case for review by a
three-member panel, his “passing references” constitute an aban-
donment of the point.3 Lapaix v. U.S. Att’y Gen.,
605 F.3d 1138,
2 “We review the BIA’s denial of a motion to reconsider for abuse of discre-
tion.” Assa’ad v. U.S. Att’y Gen.,
332 F.3d 1321, 1341 (11th Cir. 2003).
3 Even if we were to consider the issue preserved, the BIA did not err. “Under
the regulations, a case ‘may’ be assigned for review by a three-member panel
but only under certain, limited circumstances.” Mutua v. U.S. Att’y Gen.,
22
F.4th 963, 970 (11th Cir. 2022) (quoting
8 C.F.R. § 1003.1(e)(6)). Those cir-
cumstances include, among other things, the need to “review a decision by an
[IJ] or DHS that is not in conformity with the law or with applicable
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6 Opinion of the Court 22-12244
1145 (11th Cir. 2010) (explaining when a petitioner fails to offer ar-
gument on an issue, or only makes a passing reference to the issue,
that issue is deemed abandoned).
Second, while Barotov mentions his CAT claim in portions
of his brief, he does not argue how or why the BIA erred in finding
that claim waived. See Lapaix, 605 F.3d at 1145. In any event, be-
cause he did not argue in his motion for reconsideration the BIA
had erred in this respect in its 2021 decision, the BIA did not act
arbitrarily or capriciously in finding that claim was outside the
scope of his motion to reconsider. See Jiang v. U.S. Att’y Gen.,
568
F.3d 1252, 1256 (11th Cir. 2009) (stating under abuse of discretion
review, we only determine whether the BIA exercised its discretion
arbitrarily or capriciously).
Third, Barotov has abandoned any challenge to the BIA’s
conclusion that his motion for reconsideration failed because he
failed to raise any new arguments from his initial administrative
appeal. Even if we were to consider such a challenge preserved,
however, we conclude the BIA did not abuse its discretion in find-
ing Barotov did not set forth a basis for granting reconsideration,
precedents”; to “resolve a complex, novel, unusual, or recurring issue of law
or fact”; or to “review a clearly erroneous factual determination by an [IJ].”
8
C.F.R. §§ 1003.1(e)(6)(iii), (v), (vii). However, even under those circum-
stances, the decision to assign a case for review by a three-member panel is
discretionary. See
id. § 1003.1(e)(6) (“Cases may only be assigned for review
by a three-member panel if . . . ”) (emphasis added). Barotov has not shown
that such an assignment was proper under the regulations and the BIA’s deci-
sion in this respect was discretionary.
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22-12244 Opinion of the Court 7
in part because his motion “merely republishe[d] the reasons that
had failed to convince the [BIA] in the first place,” and the BIA did
not err in concluding it did not present any “errors of fact or law as
required for a successful motion to reconsider.” Calle,
504 F.3d at
1329 (quoting C.F.R. § 1003.2(b)(1)).
For these reasons, the Government’s position is clearly cor-
rect as a matter of law, and we therefore GRANT the government’s
motion for summary disposition. See Groendyke Transp., Inc. v.
Davis,
406 F.2d 1158, 1161-62 (5th Cir. 1969) 4 (stating summary
disposition is appropriate where “the position of one of the parties
is clearly right as a matter of law so that there can be no substantial
question as to the outcome of the case”). Barotov’s petition is
DISMISSED IN PART and DENIED IN PART.5
4 Decisions of the United States Court of Appeals for the Fifth Circuit issued
prior to September 30, 1981, are binding precedent in the Eleventh Circuit.
Bonner v. City of Prichard, Ala.,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
5 We DENY the government’s motion to stay the briefing schedule as moot.
