Sergei Nikoshchenkov v. U.S. Attorney General

USCA11 Case: 22-10366 Document: 21-1 Date Filed: 01/09/2023 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10366
Non-Argument Calendar
____________________
SERGEI NIKOSHCHENKOV,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A209-187-895
____________________
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2 Opinion of the Court 22-10366
Before WILSON, LUCK, and MARCUS, Circuit Judges.
PER CURIAM:
Sergei Nikoshchenkov seeks review of the Board of Immi-
gration Appeals’ (“BIA”) order denying his motion to reconsider its
initial order dismissing his appeal of the Immigration Judge’s (“IJ”)
denial of his application for deferral of removal. He argues that the
BIA ignored relevant evidence in resolving that administrative ap-
peal, improperly affirmed the IJ’s refusal to issue a subpoena and
grant him deferral of removal under the United Nations Conven-
tion Against Torture (“CAT”), and disregarded his application for
withholding of removal. After thorough review, we deny the peti-
tion for review. 1
We review only the decision of the BIA, except to the extent
that the BIA expressly adopted or explicitly agreed with the opinion
of the IJ. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947–48 (11th Cir.
2010). 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, 1340–
41 (11th Cir. 2003).
An alien may move to reconsider a decision that the alien is
removable from the United States. 8 U.S.C. § 1229a(c)(6). The
1 Our jurisdiction in this appeal is limited to reviewing the BIA order denying
Nikoshchenkov’s motion to reconsider. We lack jurisdiction over the BIA’s
initial order dismissing Nikoshchenkov’s appeal, because he did not file a peti-
tion for review of that decision within 30 days. 8 U.S.C. § 1252(b)(1).
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22-10366 Opinion of the Court 3
motion must be filed within 30 days of the entry of the final order
of removal, and “shall specify the errors of law or fact in the previ-
ous order and shall be supported by pertinent authority.” Id.§ 1229a(c)(6)(B), (C). A motion “that merely republishes the rea-
sons that had failed to convince the tribunal in the first place gives
the tribunal no reason to change its mind.” Calle v. U.S. Att’y Gen.,
504 F.3d 1324, 1329 (11th Cir. 2007) (quotations omitted). Accord-
ingly, “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. (quotations and altera-
tions omitted).
In reviewing an application for relief, the IJ and the BIA must
consider all evidence submitted. Indrawati v. U.S. Att’y Gen., 779
F.3d 1284, 1302 (11th Cir. 2015). However, they “need not address
specifically each claim the petitioner made or each piece of evi-
dence the petitioner presented.” Id. (quotations omitted).
Here, the BIA did not abuse its discretion in denying Niko-
shchenkov’s motion to reconsider its initial order dismissing his ap-
peal of the IJ’s denial of his application for deferral of removal. In
its order denying reconsideration, the BIA noted that the IJ had
considered Nikoshchenkov’s testimony and arguments about his
Russian conviction, but ultimately found that the evidence sup-
ported the legitimacy of the Russian proceedings, and that Niko-
shchenkov did not establish that the charges were fabricated. Ni-
koshchenkov’s motion for reconsideration generally restated the
same arguments the BIA rejected in its initial decision, and he failed
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4 Opinion of the Court 22-10366
to identify any specific errors of law or fact in the BIA’s decision.
Calle, 504 F.3d at 1329. As for Nikoshchenkov’s argument that the
IJ and the BIA did not expressly discuss his photographic evidence,
their omission did not mean they did not consider it, especially
since they were not required to specifically discuss it. Indrawati,
779 F.3d at 1302. Thus, Nikoshchenkov appears to merely disagree
with the IJ’s weighing of the evidence, and the BIA did not abuse
its discretion in denying his motion to reconsider its order.
Likewise, the BIA properly denied Nikoshchenkov’s motion
to reconsider its decision with respect to his motion for a subpoena,
the IJ’s disregard of his application for withholding of removal, and
the IJ’s denial of deferral of removal under CAT. In the motion to
reconsider, Nikoshchenkov did not point to any errors in the BIA’s
initial order, and, again, merely reiterated the same arguments that
he presented to the BIA in his initial brief. Because, as we’ve noted,
the BIA already considered and rejected these arguments, Niko-
shchenkov’s motion did not specify errors of law or fact “as re-
quired for a successful motion to reconsider.” Calle, 504 F.3d at
1329.
Finally, Nikoshchenkov failed to establish that he was enti-
tled to withholding of removal, since his aggravated felony convic-
tion rendered him ineligible for that kind of relief. 8 C.F.R. §
208.16(d)(2). 2 Accordingly, the BIA did not abuse its discretion in
2 Notably, Nikoshchenkov did not challenge before the BIA the IJ’s determi-
nation that his forgery conviction constituted an aggravated felony, or that he
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22-10366 Opinion of the Court 5
finding that Nikoshchenkov failed to sufficiently specify errors of
law or fact in its initial order, and we deny the petition for review.
PETITION DENIED.
remained convicted of that offense, and does not now do so on appeal. Con-
sequently, he failed to exhaust and abandoned any arguments in that respect.
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006);
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).