Fermin Alfonso Duque v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13576 ELEVENTH CIRCUIT
FEBRUARY 13, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A97-949-805
FERMIN ALFONSO DUQUE,
a.k.a. Oscar David Valencia Forero,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 13, 2009)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Fermin Alonso Duque (“Duque”) petitions for review of the Board of
Immigration Appeals’ (“BIA”) order denying his motion to reconsider its previous
decision. The BIA had dismissed his appeal from a decision of the Immigration
Judge (“IJ”) denying Duque’s asylum and withholding of removal claims. Duque
presents two arguments. First, he contends that the BIA abused its discretion in
denying his motion to reconsider. Second, he argues that the BIA erred in failing
to reopen the proceedings or reconsider its decision sua sponte. We find Duque’s
first argument unavailing and lack jurisdiction to consider his second.
Accordingly, we DENY the petition in part and DISMISS it in part.
I. BACKGROUND
Duque, a native and citizen of Colombia, arrived in the United States on or
about 16 February 2004. Administrative Record (“AR”) at 223. The Immigration
and Naturalization Service (“INS”) served Duque with a Notice to Appear
(“NTA”), charging that Duque was removable as an alien who sought to procure a
visa by fraud or willful misrepresentation of a material fact pursuant to INA §
212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), and as an alien who was not in
possession of a valid entry document pursuant to INA § 212(a)(7)(A)(i)(I), 8
U.S.C. § 1182(a)(7)(A)(i)(I). Id. Duque appeared before the IJ and conceded the
charges of removability. Id. at 64. He subsequently filed an application for
asylum, withholding of removal, and relief under the United Nations Convention
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Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”). Id. at 185-94.
At the asylum hearing, Duque testified that he last lived in Cali, Colombia,
along with his wife, children, parents, and siblings. Id. at 78-80. In Colombia,
Duque, his cousin, and his brother-in-law all worked for a community action board
which assisted local youth. Id. at 80-83. Duque was a fiscal examiner for the
organization. Id. at 82-83. In late August 2003, he received several threats from
the National Liberation Army (“ELN”).1 Id. at 83. The ELN claimed that they
were going to kill him and his family if he did not ally himself with the group and
requested that he sell off his house and other property and give the proceeds to the
ELN. Id. at 83-84, 88. The threats were communicated via letters, none of which
Duque was able to produce. According to Duque, his cousin and brother-in-law
both were murdered in Colombia, ostensibly at the hands of the ELN. Id. at 84-85,
87-88. As of the date of the asylum hearing, no other members of Duque’s family
had been harmed by the ELN because they moved to another location in Colombia
away from the Cali community. Id. at 91.
On 7 April 2006, the IJ denied Duque’s requests for asylum, withholding of
removal, and CAT relief and ordered Duque removed to Colombia. Id. at 44. The
1
In Spanish, Ejército de Liberación Nacional.
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IJ found that Duque was the victim of a crime rather than persecution on account
of a protected ground, as the ELN appeared more interested in extorting money
from him than in discouraging his efforts on behalf of local youth. Id. at 51. To
that end, the IJ found that there was no linkage between his activities on behalf of
the youth and the extortion attempt by the ELN. Id. The IJ also noted that (1)
Duque’s family remained in Colombia unharmed, albeit by moving to a different
neighborhood; (2) other members of the community action board did not
experience threats or harm; and (3) Duque did not attempt to relocate within
Colombia prior to entering the United States. Id. at 51-52. The IJ ultimately
concluded that Duque had not established a credible fear of persecution if returned
to Colombia. Id. at 52-53.
On 28 April 2006, Duque appealed the IJ’s decision to the BIA. Id. at 37-
39. In his appeal, he contended that the IJ erred in finding that he did not belong to
a protected group and in finding that he could relocate within Colombia. Id. at 38.
Duque relied, in part, on the U.S. State Department’s Colombia Country Report on
Human Rights Practices for 2002 which reported that opposition paramilitary
groups in Colombia were responsible for numerous political killings and
disappearances. Id. at 28. Duque further argued that the IJ erred by (1) ignoring
evidence of persecution on account of his socio-political beliefs and confusing it
with common criminal activity; (2) denying the nexus between his plight and his
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political opinion; and (3) assigning greater weight to the demand for money than to
the murders of Duque’s associates on the community action board and the clearly
political nature of his activities. Id. at 29-30.
The BIA dismissed the appeal and agreed with the IJ’s findings that Duque
failed to meet his burden of proof for asylum, that Duque was the victim of
criminal activity rather than persecution, and that the ELN was more interested in
extorting money from Duque than in discouraging his socio-political activities. Id.
at 13-14. The BIA also affirmed the IJ’s finding that Duque could have reasonably
avoided a threat of future persecution by relocating within Colombia, and that the
reasonableness of his fear of persecution was reduced by the fact that his family
remained unharmed in Colombia after his departure. Id. at 14. Moreover, the BIA
affirmed the IJ’s finding that Duque had not established past persecution or a well-
founded fear of future persecution because he had not shown that ELN’s extortion
efforts were related to Duque’s political activities. Id. Finally, the BIA noted that
because Duque had not challenged the IJ’s denial of his request for CAT relief, that
issue would not be addressed on appeal. Id. at 13 n.1.
Duque then filed a motion to reconsider the denial of his appeal with the
BIA. Id. at 8-11. He took issue with the BIA’s determination that he could
reasonably avoid a threat of future persecution by relocating within Colombia and
reiterated his argument that he was a victim, not of extortion, but of persecution
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based on his political activities. Id. at 2-3. On 30 May 2008, the BIA denied
Duque’s motion to reconsider. Id. at 2. The BIA found Duque’s claim that ELN’s
request for money was a form of punishment for his political activities to be
speculative and not supported by the evidence, and that the amount of money
demanded did not bring Duque within the ambit of a protected ground. Id.Moreover, the BIA observed that Duque “largely attempts to reiterate arguments
already made in connection with his appeal and already evaluated and rejected by
[the BIA].” Id. Duque now appeals the BIA’s determination to us.
II. DISCUSSION
We review the denial of a motion to reconsider for abuse of discretion. See
Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007). “A motion to
reconsider shall state the reasons for the motion by specifying the errors of fact or
law in the prior [BIA] decision and shall be supported by pertinent authority.” 8
C.F.R. § 1003.2(b)(1). However, a motion to reconsider that merely restates the
arguments that the BIA previously rejected provides no reason for the BIA to
change its prior decision. See Calle, 504 F.3d at 1329. “Therefore, 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.” Id. (quoting 8 C.F.R. § 1003.2(b)(1)).
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In this case, Duque’s motion to reconsider effectively mirrors his argument
on appeal to the BIA. He offers no new pertinent authority in support of his
allegations of error and advances the same arguments already considered and duly
rejected.2 Accordingly, we conclude that the BIA did not abuse its discretion in
denying the motion to reconsider.
To the extent that Duque argues that the BIA failed to reopen or reconsider
the proceedings pursuant to its sua sponte authority, see 8 C.F.R. § 1003.2(a), his
failure to raise this issue on appeal to the BIA precludes our review. See
Camacho-Salinas v. U.S. Att’y Gen., 460 F.3d 1343, 1346 n.1 (11th Cir. 2006)
(per curiam) (observing that we lack jurisdiction to consider claims not exhausted
before the BIA). In any event, we would lack jurisdiction to review the BIA’s
decision not to reopen a proceeding sua sponte because that decision is “committed
to agency discretion by law.” Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1294 (11th
Cir. 2008).
2
In his motion to reconsider, Duque cites two cases from our circuit but misapplies their
respective holdings. See Arboleda v. U.S. Att’y Gen., 434 F.3d 1220, 1226 (11th Cir. 2006) (per
curiam) (requiring BIA to conduct “reasonableness determination” when considering whether
petitioner could relocate to Colombia); Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231-32
(11th Cir. 2005) (per curiam) (concluding that petitioner did not demonstrate a well-founded fear
of future persecution on account of a protected ground). We also note that although Duque
refers in his motion to reconsider to a portion of the U.S. State Department’s Colombia Country
Report on Human Rights Practices for 2002, the report itself is conspicuously absent from the
record.
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III. CONCLUSION
Duque petitions for review of the BIA’s order denying his motion to
reconsider. We conclude that the BIA did not abuse its discretion in denying his
motion to reconsider and we lack jurisdiction to consider whether the BIA erred in
failing to reopen the proceedings or reconsider its decision sua sponte.
Accordingly, we DENY the petition in part and DISMISS it in part.
PETITION DENIED, in part, and DISMISSED, in part.
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