Nhora Constanza Gutierrez Jimenez v. U.S. Atty.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 24, 2007
No. 06-12908 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A96-087-523
A96-087-524
NHORA CONSTANZA GUTIERREZ JIMENEZ,
LUIS FERNANDO GODOY GARZON,
ANDRES FELIPE GODOY GUTIERREZ,
LAURA XIMENA GODOY GUTIERREZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 24, 2007)
Before DUBINA, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Nhora Constanza Gutierrez-Jimenez, her husband, and her two children
(collectively “Gutierrez-Jimenez”), all natives and citizens of Colombia, appeal the
Board of Immigration Appeals’s (“BIA”) denial of their motion to reopen or
reconsider as untimely. We find that the BIA did not abuse its discretion and
accordingly, we affirm the decision below.
Background
In 2002, Guiterrez-Jimenez applied for asylum, withholding of removal
under the Immigration and Nationality Act (“INA”) and withholding of removal
under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”)
denied all forms of relief, and Guiterrez-Jimenez next appealed to the BIA. In
August 22, 2005, the BIA affirmed the IJ’s decision. The BIA’s decision did not
mention the petitioner’s right to judicial review of its decision.
On November 21, 2005, Guiterrez-Jimenez filed a motion to reopen, arguing
that the BIA erred in failing to notify her of the right to judicial review and the
thirty-day time limit to seek such relief. This motion was rejected because the
certificate of service was incorrect. The rejection notice from the BIA stated that
the motion was returned for correction of defects, and did not extend the original
ninety-day deadline. To re-submit a motion after the deadline, the motion must be
filed within fifteen days of the original deadline and be accompanied by a request
that the BIA accept the motion by certification. Guiterrez-Jimenez resubmitted her
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corrected motion on December 5, 2005, after the original deadline, and did not
include such a request.
The BIA rejected the renewed motion as untimely, further noting that even if
it had been timely, it would not be granted since it failed to allege the existence of
new facts. Since Guiterrez-Jimenez alleged an error of law, the BIA also
considered whether the motion would succeed if treated as a motion to reconsider.
The BIA concluded that it was untimely as such and would also fail on the merits
because Guiterrez-Jimenez did not cite to pertinent authority in support of her
position. Guiterrez-Jimenez seeks review of this decision, arguing that the BIA
violated her due process rights by failing to notify her of her right to judicial
review in its initial order.
Standard of Review
We review the BIA’s denial of a motions to reopen or reconsider for abuse
of discretion. Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003). The
BIA abuses its discretion when it reaches its decision “in an arbitrary or irrational
manner.” Gomez-Gomez v. INS, 681 F.2d 1347, 1349 (11th Cir. 1982). Issues not
argued in the initial brief on appeal are deemed abandoned. Al Najjar v. Ashcroft,
257 F.3d 1262, 1283 n.12 (11th Cir. 2001).
Discussion
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A motion to reopen must be filed within ninety days of the BIA’s final
decision. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). A motion to
reopen must show there is new evidence that is material, was unavailable, and
could not have been discovered or presented at the removal hearing. 8 C.F.R. §
1003.2(c)(1). Similarly, a motion to reconsider must be filed within thirty days of
the BIA’s decision and must specify the alleged errors of fact or law and be
supported by pertinent authority. 8 C.F.R. § 1003.2(b)(1)-(2).
First, Guiterrez-Jimenez does not argue that the BIA abused its discretion in
denying these motions, and thus appears to have waived this claim. Al-Najjar, 257
F.3d at 1283, n.12. She argues instead that the BIA violated her due process rights
by failing to notify her of her right to judicial review in its August 22, 2005 order.
To the extent that this can be construed as a claim for abuse of discretion for failing
to reopen or reconsider the order, it still fails. Guiterrez-Jimenez corrected motion
was filed after the deadline for both motions to reopen and reconsider.
Additionally, it failed to allege new facts, as required by a motion to reopen, or cite
to pertinent authority demonstrating an error of law, as required by motions to
reconsider. It is not an abuse of discretion for the BIA to deny such a motion.
Accordingly, we affirm the decision below.
AFFIRMED.
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