Davi Alves Pereira v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Oct. 23, 2009
No. 09-10949 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A098-910-058
A098-910-059
DAVI ALVES PEREIRA,
a.k.a. Davi A. Pereira,
MARLENE PEREIRA,
DILMAR ALVES PEREIRA,
a.k.a. Dilmar A. Pereira,
GIOVANI ALVES PEREIRA,
a.k.a. Giovani A. Pereira,
GUILHEREME ALVES PEREIRA,
a.k.a. Guilherme A. Pereira,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 23, 2009)
Before BIRCH, CARNES and HULL, Circuit Judges.
PER CURIAM:
Davi Alves Pereira, his wife Marlene, and their three children are natives
and citizens of Brazil. They seek review of the Board of Immigration Appeals’
decision affirming the Immigration Judge’s denial of their applications for 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), 8 U.S.C. §§ 1158, 1231;
8 C.F.R. § 208.16. They also seek review of the BIA’s order denying their motion
for reconsideration.
The Pereiras fear that their social and economic status will make them
attractive targets for violent criminals in Brazil. They contend the IJ and the BIA
erred in finding that the high risk of criminal violence in that country did not
constitute “persecution” based on a statutorily protected ground. Because their
appeal from the initial BIA decision was untimely, we lack jurisdiction to review
the Pereiras’ claims on their merits. The Pereiras also failed to show that the BIA
erred in denying their motion for reconsideration. Accordingly, we dismiss the
petition in part and deny the petition in part.
I.
We review de novo whether we have subject matter jurisdiction. Arias v.
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U.S. Att’y Gen., 482 F.3d 1281, 1283 (11th Cir. 2007). An alien seeking judicial
review of an order of removal must file a petition for review not later than 30 days
after the order becomes final. INA § 242(b)(1); 8 U.S.C. § 1252(b)(1). A removal
order becomes final upon the dismissal of an appeal by the BIA. See 8 C.F.R.
§ 1241.1(a). “[T]he statutory limit for filing a petition for 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
(1995)). The finality of a removal order is not affected by the filing of a motion to
reopen or reconsider. Stone, 514 U.S. at 405, 115 S.Ct. at 1549.
Here, the removal order became final on October 17, 2008, when the BIA
issued its order affirming the IJ’s decision. To seek timely review in this Court,
therefore, the Pereiras needed to file their petition by November 17, 2008. See
INA § 242(b)(1); 8 U.S.C. § 1252(b)(1). They failed to do so. The Pereiras
instead filed a motion asking the BIA to reconsider. Unfortunately for them, that
motion did not toll the deadline for appealing the original BIA decision.
See Dakane, 399 F.3d at 1272 n.3. Because the Pereiras’ petition was not timely,
we lack jurisdiction to consider the merits of their arguments for asylum,
withholding, and CAT relief. See id. To the extent that the petition challenges the
BIA’s October 17, 2008 decision, we dismiss it.
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II.
The Pereiras’ petition, filed on February 25, 2009, was timely as to the
BIA’s January 27, 2009 denial of their motion to reconsider. We review the BIA’s
denial of reconsideration for abuse of discretion. Assa'ad v. U. S. Att’y Gen., 332
F.3d 1321, 1341 (11th Cir. 2003). After the BIA has affirmed an IJ’s order of
removal, an alien may seek reconsideration on the ground that the BIA has made a
legal or factual error. See INA § 240(c)(6); 8 U.S.C. § 1229a(c)(6); 8 C.F.R. §
1003.2(b)(1). A motion for reconsideration must specify the errors of law or fact
in the previous order and be supported by pertinent authority. 8 U.S.C.
§ 1229a(c)(6)(C).
Despite the fact that their petition seeks review of the BIA’s order denying
reconsideration, the Pereiras do not address that order in their brief before this
Court. Instead, the substance of the brief challenges the BIA’s original decision,
and offers argument only on the merits of the underlying claims–which, as
discussed above, we are jurisdictionally barred from considering. The Pereiras
make no attempt to show that the BIA abused its discretion in denying
reconsideration. Thus, they have abandoned the issue. “When an appellant fails to
offer argument on an issue, that issue is abandoned.” Sepulveda v. U.S. Att’y
Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005); see also Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (mere assertion of error,
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without briefing specific arguments on the merits, waives the issue).
Even if the Pereiras had argued the point, they would not be able to show
that the BIA abused its discretion in denying their motion for reconsideration.
That motion did not identify any specific errors of law or fact in the BIA’s original
decision, and it contained nothing of substance that had not already been said in the
Pereiras’ initial appeal. “[M]erely 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) (citation omitted) (omission in original). “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). The BIA did not abuse its discretion in denying a motion
for reconsideration that offered no argument it had not already considered and
rejected. To the extent that the petition challenges the denial of reconsideration,
we deny it.
PETITION DISMISSED IN PART, DENIED IN PART.
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