Elba Corina Mora Lancheros v. U.S. Atty. Gen.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 8, 2008
No. 07-13307 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A97-193-666
ELBA CORINA MORA LANCHEROS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 8, 2008)
Before MARCUS, WILSON and FAY, Circuit Judges.
PER CURIAM:
Elba Corina Mora Lancheros (“Mora”), a native and citizen of Venezuela,
who is represented by counsel, seeks review of the Board of Immigration Appeals
(“BIA’s”) denial of her motion for reconsideration of the BIA’s denial of her
motion to reopen. Mora argues that the BIA abused its discretion in denying her
motion to reconsider because it exercised its administrative decision in an arbitrary
and capricious manner when it concluded that her marriage was not bona fide
where it failed to consider (1) the receipt from U.S. Citizenship and Immigration
Service (“USCIS”) for her I-130 petition; (2) a letter dated January 18, 2006, from
John J. Shannon, and (3) the psychiatric evaluation submitted with Mora’s brief on
appeal. Mora also contends that the BIA abused its discretion in finding that her
motion to reconsider was, in effect, a motion to reopen because its finding is
contrary to the clear intent of Congress to allow the submission of additional
evidence in a motion to reconsider. For the reasons set forth more fully below, we
deny Mora’s petition for review.
After a hearing on the merits, the Immigration Judge (“IJ”) denied Mora’s
application for asylum, withholding of removal and CAT relief. The IJ specifically
found that Mora was not credible and that she had falsely testified at the hearing.
The BIA dismissed Mora’s appeal and denied her motion to remand. We denied
Mora’s petition for review. Mora Lancheros v. U.S. Attorney Gen., (No. 06-
16055) (11th Cir. June 7, 2007).
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Mora filed a motion to reopen with the BIA. In the motion, Mora stated that
she and Shannon had recently married and on that basis Mora had forwarded an
I-130 immediate relative petition and required filing fee to the USCIS. Mora noted
in the motion Shannon’s January 18, 2006, letter in which he referred to Mora as
his girlfriend. Later, Mora supplemented her motion to reopen with a receipt that
indicated that the USCIS received a copy of Mora’s I-130 petition.
The BIA denied Mora’s motion to reopen. The BIA acknowledged the
documents that Mora had filed in support of her motion to reopen. Nonetheless,
the BIA determined that Mora had failed to present “clear and convincing evidence
indicating a strong likelihood that [Mora’s] marriage [was] bona fide.”
Specifically, the BIA stated that Mora “presented no evidence bearing upon this
requirement, a failure that is particularly problematic in light of the prior adverse
credibility finding in connection with [Mora’s] asylum claim.” The BIA did not
consider the receipt from USCIS in its decision “as it was not associated with the
record file prior to the issuance of the Board’s 4/10/07 order.”
Mora filed the instant motion to reconsider with the BIA. Mora requested
that the BIA reexamine its April 10, 2007, decision, and alleged that the BIA failed
to consider her relationship with Shannon that began well before the time he wrote
the letter. Mora stated in the motion,
Although this motion is akin to that of a motion to reopen inasmuch as
Ms. Mora has asked the [BIA] to examine additional evidence
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submitted on the issue of the bona fides of her marriage, Ms. Mora
appeals to the sound discretion of the [BIA] to reconsider its decision
of April 10, 2007[,] as it is clear that her marriage to [Shannon] is
bona fide.
Mora attached numerous documents in support of her motion to reconsider.
The BIA denied Mora’s motion to reconsider.
We review the denial of a motion to reconsider for an abuse of discretion.
Calle v. U.S. Attorney Gen., 504 F.3d 1324, 1328 (11th Cir. 2007). Our review of
the BIA’s discretionary decision is “limited to determining whether there has been
an exercise of administrative discretion” and whether the manner in which it was
exercised “has been arbitrary or capricious.” See Abdi v. U.S. Attorney Gen., 430
F.3d 1148, 1149 (11th Cir. 2005). “To the extent that the BIA’s decisions were
based on a legal determination, our review is de novo.” Sheerer v. U.S. Attorney
Gen., 513 F.3d 1244, 1252 (11th Cir. 2008). “However, we defer to the BIA’s
interpretation of the regulations governing it ‘if the interpretation . . . is reasonable
and does not contradict the clear intent of Congress.’” Id. (citation omitted).
After the BIA has affirmed an IJ’s order of removal, the 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 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); see also INA § 240(c)(6)(C); 8 U.S.C. § 1229a(c)(6)(C).
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“The decision to grant or deny a motion to reopen or reconsider is within the
discretion of the BIA.” 8 C.F.R. § 1003.2(a).
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 (citation omitted). “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)). Motions to reconsider are disfavored in
removal proceedings. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 724-
25, 116 L.Ed.2d 823 (1992) (discussing motions to reopen and explaining that such
motions are disfavored because, “as a general matter, every delay works to the
advantage of the deportable alien who wishes merely to remain in the United
States”).
On the other hand, “[a] motion to reopen proceedings shall state the new
facts that will be proven at a hearing to be held if the motion is granted and shall be
supported by affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1);
INA § 240(c)(7)(B); 8 U.S.C. § 1229a(c)(7)(B). In general, an alien may file only
one motion to reopen. See 8 C.F.R. § 1003.2(c)(2); INA § 240(c)(7)(A); 8 U.S.C.
§ 1229a(c)(7)(A). We have recently determined that an alien may file one motion
to reopen for each decision by the BIA. Calle, 504 F.3d at 1328.
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As an initial matter, Mora failed to present to the BIA her arguments that:
(1) in deciding her motion to reopen the BIA erred by failing to consider the
receipt from USCIS for her I-130 petition; and (2) the BIA erred in concluding that
Mora failed to resolve her credibility issues. Therefore, we lack jurisdiction to
consider those claims. See 8 U.S.C. § 1252(d)(1) (“[a] court may review a final
order of removal only if . . . the alien has exhausted all administrative remedies
available to the alien as of right”); see also Sundar v. INS, 328 F.3d 1320, 1323
(11th Cir. 2003) (explaining that the exhaustion requirement is jurisdictional, such
that we “lack jurisdiction to consider claims that have not been raised before the
BIA”).
As to Mora’s arguments properly presented to the BIA, the BIA did not
abuse its discretion by denying Mora’s motion to reconsider. In her motion to
reconsider, Mora claimed that she referred to Shannon’s letter in her motion to
reopen to “demonstrate that, given their pre-existing relationship, Ms. Mora’s and
Mr. Shannon’s marriage on January 19, 2007[,] was clearly bona fide.” Mora also
asserted that she and Shannon were maintaining a “romantic relationship” that
began well before the date of the letter. However, Mora could have, but did not,
present those specific arguments in her motion to reopen. Moreover, her claims do
not constitute “specifying the errors of fact or law in the prior [BIA] decision.”
Thus, the BIA did not act arbitrarily or capriciously in (1) concluding that there
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was no error in its prior order denying Mora’s motion to reopen, and (2) finding
that Mora “raised no persuasive argument that the denial of her motion contained
error of law or fact.”
Additionally, Mora’s argument that the BIA misinterpreted the regulation
that governs motions to reconsider is without merit. Contrary to Mora’s assertions,
the BIA did not conclude that the submission of additional evidence was “not
allowed” in a motion to reconsider. Significantly, Mora acknowledged that her
motion for reconsideration was “akin to that of a motion to reopen inasmuch as
Ms. Mora has asked the [BIA] to examine additional evidence submitted on the
issue of the bona fides of her marriage.” The BIA addressed Mora’s request to
examine the additional evidence that she submitted with her motion only after it
concluded that there was no basis for granting the motion for reconsideration.
Mora already had filed a motion to reopen the BIA’s October 24, 2006, order
affirming the IJ’s decision denying Mora’s claims for asylum, withholding of
removal, and CAT relief. Thus, the BIA did not act arbitrarily or capriciously
when it stated that any subsequent motion to reopen the October 24, 2006, order
would be numerically barred.
In light of the foregoing, the BIA did not abuse its discretion in denying
Mora’s motion to reconsider. Accordingly, Mora’s petition for review is
DENIED.
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