Marina Oliveira v. U.S. Attorney Genearl

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-10798
Non-Argument Calendar
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Agency No. A093-075-861
MARINA OLIVEIRA,
EDIR AUGUSTO DA SILVA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
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(November 7, 2014)
Before JULIE CARNES and ANDERSON, Circuit Judges.*
_____________
*This decision is rendered by a quorum due to the retirement of Judge James C. Hill on October
20, 2014. See 28 U.S.C. §46(d).
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PER CURIAM:
Marina Oliveira and Edir Augusto Da Silva, natives and citizens of Brazil,
petition for review of the denial of their motion to the Board of Immigration
Appeals (“BIA”) to reconsider its September 17, 2013 denial of their application
for cancellation of removal, pursuant to § 240A(b)(1) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1229b(b)(1), on the ground that their removal
would result in exceptional and extremely unusual hardship to their two sons, who
are United States citizens.
Oliveira and Da Silva argue on appeal that the BIA overlooked evidence that
supported their motion to reconsider, including that, if they returned to Brazil, their
sons would be deprived of educational opportunities and the petitioners would be
completely unable to provide for their family. In doing so, they assert, the BIA
violated their due process rights. The petitioners also contend that the BIA failed
to consider its precedential decisions in Matter of Monreal-Aguinaga, 23 I.&N.
Dec. 56 (BIA 2001), Matter of Andazola-Rivas, 23 I.&N. Dec. 319 (BIA 2002),
and Matter of Gonzalez Recinas, 23 I.&N. Dec. 467 (BIA 2002). The petitioners
maintain that we have jurisdiction to review the BIA’s decision that they failed to
meet the exceptional and extremely unusual hardship standard because they have
alleged a due process violation. The petitioners also argue that the Immigration
Judge (“IJ”) erred in concluding that they failed to establish their continuous
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physical presence in the United States and that the IJ demonstrated prejudice,
discrimination, and bias against them, in violation of their due process rights.
We review the BIA’s denial of a motion to reconsider for abuse of
discretion. Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). An
alien may file one motion to reconsider a decision that he is removable from the
United States. INA § 240(c)(6)(A), 8 U.S.C. § 1229a(c)(6)(A). The motion shall
specify the errors of law or fact in the removal order and be supported by pertinent
authority. INA § 240(c)(6)(C), 8 U.S.C. § 1229a(c)(6)(C). Merely reiterating
arguments previously made to the BIA does not specify errors of law or fact as
required for a successful motion to reconsider. Calle v. U.S. Att’y Gen., 504 F.3d
1324, 1329 (11th Cir. 2007).
The Attorney General may cancel the removal of an alien who is
inadmissible or deportable if the alien: (a) has been physically present in the
United States for a continuous period of at least ten years immediately preceding
the date of the alien’s application for cancellation of removal; (b) has been a
person of good moral character during that same ten-year period; (c) has not been
convicted of enumerated criminal offenses; and (d) establishes that his removal
would cause exceptional and extremely unusual hardship to his spouse, parent, or
child who is a United States citizen or an alien lawfully admitted for permanent
residence. INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1).
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We review our own subject matter jurisdiction de novo. Martinez v. U.S.
Att’y Gen., 446 F.3d 1219, 1221 (11th Cir. 2006). We lack jurisdiction to review a
determination that an alien has failed to satisfy the exceptional and extremely
unusual hardship standard. INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i);
Martinez, 446 F.3d at 1221-23. However, we have jurisdiction over related
constitutional claims or questions of law raised in a petition for review.
INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). We have jurisdiction over
constitutional claims only when a petitioner alleges “at least a colorable
constitutional violation,” which means that “the claim must have some possible
validity.” Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 & n.2 (11th Cir. 2007)
(quotations omitted). A petitioner cannot create jurisdiction “simply by cloaking
an abuse of discretion argument in constitutional garb.” Id. at 1284 (quotation
omitted). Challenges to the agency’s conclusion that the alien failed to
demonstrate exceptional and extremely unusual hardship are not constitutional
claims or questions of law subject to review pursuant to INA § 242(a)(2)(D),
8 U.S.C. § 1252(a)(2)(D). Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 549-50
(11th Cir. 2011).
To obtain judicial review of an order of removal, an alien must file a petition
for review with this Court not later than 30 days after the final order of removal
was issued. See INA § 242(b)(1), 8 U.S.C. § 1252(b)(1). The deadline is
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mandatory and jurisdictional and is not subject to equitable tolling. Dakane v. U.S.
Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005). The filing of a motion to
reconsider does not affect the finality of the removal order. Jaggernauth v. U.S.
Att’y Gen., 432 F.3d 1346, 1350-51 (11th Cir. 2005). Neither does it toll the
deadline for filing a petition for review. See id.; Dakane, 399 F.3d at 1272 n.3
(addressing a motion to reopen).
In addition, we may not review a final order of removal unless the alien has
exhausted all administrative remedies available to him as of right.
INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). Thus, we lack jurisdiction to consider
claims that were not first presented to the BIA. Amaya-Artunduaga v. U.S. Att’y
Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006).
Here, Oliveira and Da Silva’s motion to the BIA to reconsider its
September 17, 2013 denial of their application for cancellation of removal did not
specify any errors of law or fact in the BIA’s September 17, 2013 decision.
See INA § 240(c)(6)(C), 8 U.S.C. § 1229a(c)(6)(C). Rather, the motion simply
restated the petitioners’ earlier argument that under Monreal-Aguinaga, 23 I.&N.
Dec. 56, Matter of Andazola-Rivas, 23 I.&N. Dec. 319, and Matter of Gonzalez
Recinas, 23 I.&N. Dec. 467, they satisfied the exceptional and extremely unusual
hardship standard, and their earlier factual allegations regarding their inability to
support their family in Brazil, the lack of educational opportunities there for their
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sons, and the lower standard of living they would all face. See Calle, 504 F.3d
at 1329. Accordingly, to the extent that Oliveira and Da Silva’s petition for review
challenges the BIA’s denial of their motion to reconsider, the petition is denied.
Pursuant to INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i), we lack
jurisdiction to consider the petitioners’ claim that the BIA and IJ erred in
concluding that they failed to satisfy the exceptional and extremely unusual
hardship standard. Martinez, 446 F.3d at 1221-23. While the petitioners allege
that the BIA violated their due process rights in reaching its decision, the due
process claim is not colorable, as it actually alleges that the BIA failed to properly
credit or weigh the evidence they presented. See Arias, 482 F.3d at 1284 & n.2;
Alhuay, 661 F.3d at 549-50. Moreover, the petitioners did not seek review of the
BIA’s September 17, 2013 decision in this Court.
We also lack jurisdiction over the petitioners’ claim that the IJ violated their
due process rights by exhibiting prejudice, discrimination, and bias toward them
because they failed to raise that claim before the BIA at any point. See Amaya-
Artunduaga, 463 F.3d at 1250-51. We likewise lack jurisdiction over the
petitioners’ claim that the IJ incorrectly concluded that they had not established
their continuous physical presence in the United States because it has no bearing
on the BIA’s denial of relief, which entirely rested on their failure to meet the
exceptional and extremely unusual hardship standard. See Lopez v. U.S. Att’y
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Gen., 504 F.3d 1341, 1344 (11th Cir. 2007). Accordingly, to the extent that
Oliveira and Da Silva’s petition for review challenges issues other than the denial
of their motion to reconsider, the petition is dismissed.
DENIED in part and DISMISSED in part.
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