Lina Rocio Osorio v. U.S. Attorney General, (11th Cir. 2007)

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[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 8, 2007

THOMAS K. KAHN

N o . 06-13744

CLERK

N o n - A r g u m e n t Calendar

B IA Nos. A79-505-927 & A79-505-928

L IN A ROCIO OSORIO,

DANIEL ALBERTO PARRA,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

P etitio n for Review of a Decision of the

B o ard of Immigration Appeals

(J a n u a ry 8, 2007)

B efo re BIRCH, PRYOR and FAY, Circuit Judges.

P E R CURIAM:

C o lo m b ia n natives and citizens Lina Rocio Osorio and her husband, Daniel A lb erto Parra, petition for review of the decision of the Board of Immigration A p p eals ("BIA") denying their motion to reconsider its previous decision d ism issin g their appeal from the Immigration Judge's ("IJ") order of removal and d en ial of asylum and withholding of removal under the Immigration and N atio n ality Act ("INA") and relief under the United Nations Convention Against T o rtu re and Other Cruel, Inhuman or Degrading Treatment or Punishment ( "C A T " ). Osorio and Parra challenge both of the BIA's orders on the ground that th e IJ's decision was in error, as they established eligibility for asylum and w ith h o ld in g of removal due to persecution by the Revolutionary Armed Forces of C o lo m b ia ("FARC"). The government argues that we lack jurisdiction to review th e BIA's decision on the petitioners' appeal from the IJ's order because the p etitio n for review is untimely. For the reasons set forth more fully below, we d ism iss the petition, in part, and deny the petition, in part.

A s an initial matter, to the extent that the petitioners challenge the BIA's in itial order dismissing their appeal, we lack jurisdiction. We review subjectm atter jurisdiction de novo. Tan v. U.S. Att'y Gen., 446 F.3d 1369, 1373 (11th C ir. 2006). In order to review a final order of removal, the petition for review must b e filed no later than 30 days after the date of the order. 8U.S.C. § 1252(a)(1), (b )(1 ), INA § 242(a)(1), (b)(1). "[T]he statutory limit for filing a petition for rev iew in an immigration proceeding is `mandatory and jurisdictional,' [and, th erefo re,] it is not subject to equitable tolling." Dakane v. U.S. Att'y Gen., 399 F .3 d 1269, 1272 n.3 (11th Cir. 2005) (quoting Stone v. INS, 514 U.S. 386, 405, 1 1 5 S.Ct. 1537, 1549, 131 L.Ed.2d 465 (1995)). The finality of a removal order is n o t affected by the filing of a motion to reconsider. Stone, 514 U.S. at 405, 115 S .C t. at 1549.

The BIA's April 13, 2006 order, which affirmed the IJ's decision, was a fin al order of removal. See 8 C.F.R. § 1241.1(a). Because the petitioners did not file their petition for review until July 7, 2006, more than 30 days later, their p etitio n was not timely and, therefore, we lack jurisdiction to address the merits of th e BIA's decision affirming the IJ's denial of the petitioners' request for asylum, w ith h o ld in g of removal, and CAT relief. See 8U.S.C. § 1252(b)(1); Dakane, 399 F .3 d at 1272 n.3; Stone, 514 U.S. at 405, 115 S.Ct. at 1549. However, as the p etitio n for review is timely as to the BIA's denial of reconsideration, we have ju r is d ic tio n to review that order. See 8U.S.C. § 1252(b)(1); Dakane, 399 F.3d at 1 2 7 2 & n.3.

We review the denial of motions to reconsider for abuse of discretion.

Assa'ad v. U.S. Att'y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). A motion for reco n sid eratio n "shall specify the errors of law or fact in the previous order and sh all be supported by pertinent authority." 8U.S.C. § 1229a(c)(6)(C), INA § 240(c)(6)(c); see also 8 C.F.R. § 1003.2(b)(1) (same). "A motion that merely r ep u b lis h e s the reasons that had failed to convince the tribunal in the first place g iv es the tribunal no reason to change its mind." Ahmed v. Ashcroft, 388 F.3d 247, 2 4 9 (7th Cir. 2004).

W h e n denying the motion to reconsider, the BIA found that it had co n sid ered the arguments made in the motion before it rendered its initial decision an d declined to revisit them. The petitioners do not challenge the BIA's finding th a t it considered the arguments made in their motion when it decided their appeal f ro m the IJ's decision. Instead, their claim of error is premised on generalized arg u m en ts as to the merits of their application for asylum and withholding of rem o v al. A review of the petitioners' notice of appeal, brief to the BIA, and m o tio n for reconsideration shows that the petitioners' arguments in their motion fo r reconsideration were not substantively different than their previous arguments.

In both instances, the petitioners argued that the evidence demonstrated that they h a d suffered past persecution by the FARC, had a well-founded fear of future p e r se cu tio n , and could not internally relocate within Colombia or return there b ecau se of a threat to their lives. The only law cited in the petitioners' motion for reco n sid eratio n was our decision in Arboleda v. U.S. Attorney General, 434 F.3d 1 2 2 0 (11th Cir. 2006), which formed the basis for their argument that they could n o t internally relocate. However, in its initial decision, the BIA had relied on A rb o led a to reject the IJ's finding that the petitioners could relocate internally.

Under these circumstances, we hold that the BIA did not abuse its discretion by d en yin g the petitioners' motion to reconsider because the BIA already found in the p e titio n e rs ' favor with respect to their claim of legal error as to the IJ's internal relo catio n finding and the petitioners otherwise merely reargued the merits of their alread y-rejected claims.

In light of the foregoing, the petition for review is D IS M IS S E D , IN PART, AND DENIED, IN PART.

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