Yolanda C. Zuluaga v. U.S. Atty. General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 1, 2006
No. 06-11153 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A79-344-054 & A79-344-055
YOLANDA CARDENAS ZULUAGA,
GONZALO LESMES CASTANEDA,
GINA PAOLA LESMES CARDENAS,
CLAUDIA YOLANDA LESMES CARDENAS,
TATIANA LESMES CARDENAS,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 1, 2006)
Before TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Petitioners Yolanda Cardenas Zuluaga, her husband, Gonzalo Lesmes
Castaneda, and their three children, through counsel, petition for review of the
Board of Immigration Appeals (“BIA’s”) January 19, 2006, order denying their
motion to reconsider and/or reopen its decision affirming the Immigration Judge
(“IJ’s”) removal order. On appeal, petitioners argue that: (1) because the BIA
failed to make probative findings of fact with regard to their claims in its June 30,
2005, order affirming the IJ’s denial of asylum, we must review the IJ’s decision;
(2) they are entitled to a finding of credibility on appeal because the IJ did not
make a clean determination of credibility when determining that they were
ineligible for relief; and (3) the IJ erred by basing an adverse credibility conclusion
upon a lack of timely corroborating evidence in light of its failure to make a clean
determination of credibility.
Because the petitioners primarily assert claims that the BIA erred in
affirming the IJ’s decision or the IJ erred in failing to make a clean determination
of credibility in their case, they appear to attempt to advance claims that the BIA
erred in issuing its final order of removal. By statute, an alien seeking review of a
final order of the BIA must file a petition for review within 30 days of the issuance
of the final order. INA § 242(b)(1); 8 U.S.C. § 1252(b)(1). An order of removal
becomes final upon, inter alia, 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
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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,
131 L. Ed. 2d 465 (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.
After reviewing the record, we conclude that we do not have jurisdiction to
review the BIA’s underlying decision affirming the IJ’s removal order because the
petitioners filed their petition for review more than 30 days after the removal order
became final.
In their conclusion to their brief, petitioners also argue that the BIA erred in
its January 19, 2006, order denying their motion to reopen because the BIA may
grant an untimely motion to reopen based on “changed circumstances.” They
argue that they demonstrated, in support of their motion, changed circumstances by
indicating that the Columbian Armed Forces (“FARC”) had increased its power in
Colombia. They conclude that, based on this new evidence “submitted in” their
motion to re-open, the matter should either be remanded to the BIA or their motion
should be granted in the alternative.
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We review the BIA’s denial of a motion to reopen 1 for an abuse of
discretion. Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1340 (11th Cir. 2003). A
party may only file one motion to reopen removal proceeding, and that motion
“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
U.S.C. § 1229a(c)(7)(A), (B). Subject to certain exceptions set forth in the statute
and regulations, "the motion to reopen shall be filed within 90 days of the date of
entry of a final administrative order of removal." Id. § 1229a(c)(7)(C)(i); see also 8
C.F.R. § 1003.2(c)(2). However, the time limitation does not apply to a motion to
reopen proceedings, inter alia, to apply or reapply for asylum or withholding of
deportation “based on changed circumstances arising in the country of nationality
or in the country to which deportation has been ordered, if such evidence is
material and was not available and could not have been discovered or presented at
the previous hearing.” Id. § 1003.2(c)(3)(ii). We have stated that the congressional
filing deadlines should be read literally by federal courts and held that the time
limitations in INA § 242B(c)(3)(A)2 were “jurisdictional and mandatory.” Anin v.
1
Petitioners do not argue that the BIA erred in determining that their motion, construed as
a motion to reconsider, was untimely, and, thus, this argument is deemed waived. See Sepulveda
v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (finding that, where a party fails to offer
argument on an issue, that issue is abandoned).
2
Repealed law that had provided the time limitation for filing in absentia deportation orders.
See 8 U.S.C. § 1252b(c)(3)(A) (repealed 1996).
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Reno, 188 F.3d 1273, 1278 (11th Cir. 1999). Further, in Abdi v. U.S. Att'y Gen.,
430 F.3d 1148, 1150 (11th Cir. 2005) (citation omitted), we noted that, although
the limitation in 8 C.F.R. § 1003.2(c)(2) may be subject to the doctrine of equitable
tolling, “[u]nder Anin' s rationale, the statutory 90-day period for filing a notice of
appeal is mandatory and jurisdictional, and, therefore, it is not subject to equitable
tolling.”
As an initial matter, because petitioners only made passing reference
regarding their motion in their conclusion to their brief and did not elaborate on
any argument that the BIA erred in denying that motion, we conclude that they
have abandoned it on appeal. Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570,
1573 n.6 (11th Cir.1989) (concluding that issue is deemed waived where a party
fails to include substantive argument and only makes a passing reference to the
order appealed from); see also Flanigan's Enterprises, Inc. of Georgia v. Fulton
County, Ga., 242 F.3d 976, 987 n.16 (11th Cir. 2001) (concluding that a party
waives an issue where he does not elaborate on or provide any citation of authority
in support of the issue). However, even if the petitioners had not abandoned this
issue, we are persuaded that the BIA did not abuse its discretion by denying their
motion because (1) petitioners filed their motion after the time limitations for filing
such motion had expired; (2) they did not attach any affidavits or evidence in
support of their motion; and (3) the evidence they referred to in their motion was
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not material to their claim to warrant an exception to the time limitations for filing
a motion to reopen in the regulations. Accordingly, we dismiss the petition in part,
and deny the petition in part.
PETITION DISMISSED IN PART, DENIED IN PART.
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