Sandra P. Agredo-Munoz v. U.S. Atty. Gen.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 3, 2005
No. 04-12365
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A77-002-150
SANDRA PATRICIA AGREDO-MUNOZ,
Petitioner,
versus
U. S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision
of the Board of Immigration Appeals
_________________________
(May 3, 2005)
Before BIRCH, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Sandra P. Agredo Munoz, a native and citizen of Colombia, petitions for
review of the April 13, 2004 final order of the Board of Immigration Appeal
(“BIA”) denying her motion for reconsideration of her asylum appeal. First,
Munoz argues that the BIA erred in its August 26, 2003 final order of removal, in
which it vacated the decision of the immigration judge (“IJ”) granting her asylum.
We note at the outset that Munoz never sought review of the August 26, 2003
Order in this Court. Second, Munoz urges us to order the BIA to remand her case
back to the IJ in order to allow her to establish eligibility for withholding of
removal under the Immigration and Nationality Act (“INA”) and the United
Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (“CAT”). She raises her eligibility for withholding for
the first time in this appeal. Finally, Munoz argues the BIA erred by denying her
motion for reconsideration.1
We are “obligated to inquire into subject-matter jurisdiction sua sponte
whenever it may be lacking.” This Court has jurisdiction to review “final order[s]
of removal.” INA § 242(a)(1), 8 U.S.C. § 1252(a)(1). We “may review a final
order of removal only if . . . the alien has exhausted all administrative remedies
available to the alien as a matter of right.” INA § 242(d)(1), 8 U.S.C. § 1252(d)(1).
1
Because Munoz’s removal proceedings commenced after April 1, 1997, the effective date
of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,
110 Stat. 3009 (1996) (“IIRIRA”), this case is governed by the permanent provisions of the INA,
as amended by IIRIRA. Dakane v. U.S. Attorney Gen., No. 03-13870, manuscript op. at 5 (11th Cir.
Feb. 8, 2005).
2
The exhaustion requirement is jurisdictional and precludes review of a claim that
was not presented to the BIA. Najjar v. Ashcroft, 257 F.3d 1262, 1285 n.14 (11th
Cir. 2001); Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th
Cir. 2001). “A petitioner cannot obtain review of procedural errors in the
administrative process that were not raised before the [BIA] merely by alleging
that every such error violates due process.” Sundar v. INS, 328 F.3d 1320, 1325-
26 (11th Cir.) (quotation omitted), cert. denied, 540 U.S. 1006 (2003).
While we generally have jurisdiction to review exhausted claims arising
from a final order of removal, the petition for review of that final order must be
filed within 30 days of the date of the final order of removal. See INA § 242(b)(1),
8 U.S.C. § 1252(b)(1). The statutory time limit for filing a direct petition for
review in an immigration case is “‘mandatory and jurisdictional,’ and [is] not
subject to equitable tolling.” Stone v. INS, 514 U.S. 386, 405, 115 S. Ct. 1537,
1549, 131 L. Ed. 2d 465 (1995) (citation omitted) (construing the former 90-day
period for filing a petition for review under INA § 106(a)(1), 8 U.S.C. § 1105a(a)).
Moreover, a motion to reconsider filed with the BIA does not suspend the finality
of the underlying BIA order and does not toll the review period. Stone, 514 U.S. at
405-06, 115 S. Ct. at 1549.
In this petition to review the denial of Munoz’s motion to reconsider, we
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have no jurisdiction to consider the underlying asylum or withholding-of-removal
claims because Munoz did not timely seek review of the August 26, 2003 order.
We also lack jurisdiction to order the BIA to remand Munoz’s case for
consideration of withholding under wither the INA or CAT because Munoz never
presented this argument to the BIA.2 Accordingly, we must dismiss Munoz’s
petition to the extent it challenges the BIA’s denial of her underlying asylum claim
and requests this Court to order a remand for the IJ to determine her eligibility for
withholding of removal.
As for the BIA’s denial of her motion for reconsideration, we review that
decision for an abuse of discretion. See Assa’ad v. U.S. Att’y Gen., 332 F.3d
1321, 1341 (11th Cir. 2003), cert. denied, 125 S.Ct. 38 (2004). Our review is
limited to determining “whether there has been an exercise of administrative
discretion and whether the matter of exercise has been arbitrary or capricious.”
Garcia-Mir v. Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (addressing a motion to
reopen) (quotation omitted). “The application of an abuse-of-discretion review
recognizes the range of possible conclusions the trial judge may reach.” See
2
Although “[m]otions to remand are not expressly addressed by the [INA] or the
regulations . . . ., such motions are commonly addressed to the Board.” Matter of Coelho, 20 I &
N Dec. 464, 471 (BIA 1992). It is undisputed that Munoz presents her remand argument for the first
time in this appeal.
4
United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc), petition
for cert. filed, No. 04-8324 (Jan. 13, 2005). Thus, we will affirm the district court
even on “‘occasions in which . . . we would have gone the other way had it been
our call.’” Id. (quoting Rasbury v. I.R.S. (In re Rasbury, 24 F.2d 159, 168 (11th
Cir. 1994)). When employing this standard, “we must affirm unless we find that
the district court has made a clear error of judgment, or has applied the wrong legal
standard.” Id. (citation omitted).
Under the regulations, a motion for reconsideration must specify “the errors
of fact or law in the prior [BIA] decision.” 8 C.F.R. § 1003.2(b)(1). “A motion to
reconsider asserts that at the time of the Boards’ previous decision an error was
made.” Matter of Cerna, 20 I & N Dec. 399, 402 (BIA 1991). When the BIA
reconsiders one of its prior decisions, it takes itself “back in time and consider[s]
the case as though a decision in the case on the record . . . had never been entered.”
Id. Motions to reconsider are disfavored, especially in a removal proceeding,
“where, as a general matter, every delay works to the advantage of the deportable
alien who wishes merely to remain in the United States.” INS v. Doherty, 502 U.S.
314, 323, 112 S. Ct. 719, 724-25, 116 L. Ed. 2d 823 (1992) (addressing a motion to
reopen).
In her motion to reconsider, Munoz primarily argued that the BIA failed to
5
consider her reasons for fleeing Colombia. In its final order, the BIA specifically
addressed and rejected all of these arguments. We cannot find that the BIA abused
its discretion in denying reconsideration of arguments that it previously had
considered and rejected. Moreover, Munoz failed to specify errors of law or fact in
her motion to reconsider, as required by 8 C.F.R. § 1003.2(b)(1). Accordingly, we
deny her petition for review as to the denial of her motion for reconsideration.
In sum, we dismiss Munoz’s petition for review to the extent it challenges
the BIA’s August 26, 2003 order and requests that we remand the case, and we
deny the petition as it relates to the motion to reconsider.
PETITION DISMISSED IN PART AND DENIED IN PART.
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