Entela Ruga v. U.S. Attorney General , 615 F. App'x 567 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-13284
Non-Argument Calendar
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Agency No. A095-969-131
ENTELA RUGA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(June 24, 2015)
Before MARTIN, JULIE CARNES and FAY, Circuit Judges.
PER CURIAM:
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Entela Ruga, a native and citizen of Albania, petitions pro se for review of
the Board of Immigration Appeals’s denial of her motion to reconsider its 2013
order. 1 The order that Ruga asked the BIA to reconsider affirmed an Immigration
Judge’s decision that she knowingly filed a frivolous asylum application after
receiving proper warning of the consequences of doing so. The consequence of
this BIA ruling is that Ruga is permanently ineligible for further immigration
benefits under the Immigration and Nationality Act (INA). 8 U.S.C. § 1158(d)(6).
After careful review of the parties’ briefs, we deny in part and dismiss in part
Ruga’s petition.
BACKGROUND
Ruga filed an asylum application under the name “Entela Dollaku.” The
application indicated that she resided in Albania from April 1971 until September
2003. Neither her name nor her residency information was accurate. The
application explained the consequences of filing a deliberately fabricated
application for asylum. In her asylum interview, Ruga explicitly affirmed that the
application was truthful. Also at the interview, she signed an application oath
1
This appeal addresses the BIA’s 2014 denial of Ruga’s motion to reconsider. Because Ruga
filed her petition for review on July 22, 2014, more than 30 days after the underlying 2013 BIA
order, she cannot challenge the BIA order itself. 8 U.S.C. § 1252(b)(1); see also Chao Lin v.
U.S. Att’y Gen., 677 F.3d 1043, 1045 (11th Cir. 2012) (stating that statutory time limit for filing
a petition for review in an immigration proceeding is mandatory and jurisdictional, and is not
subject to equitable tolling). Perhaps mindful of this, Ruga designates only the BIA’s decision
denying her motion to reconsider in her petition for review.
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which clearly set out the consequences of filing a deliberately fabricated
application for asylum.
After many additional hearings relating to her immigration status, Ruga
withdrew her asylum application. The IJ held a hearing to determine whether
Ruga had filed a fraudulent asylum application, which would bar her from any
future adjustment in her immigration status. At the hearing, Ruga admitted that
she had signed the application, but said she did not fill it out and did not know
what it stated. Ruga also admitted that several items in the statement attached to
her application were not true. She explained that she learned the statements were
false once she retained an attorney, about one year after the application was
written.
The IJ found that Ruga knew for more than two years that her asylum claim
was fraudulent and never took any action to alert the court to the errors. The BIA
affirmed the IJ’s determination. Ruga filed a petition for review of the BIA’s
order, challenging whether she knowingly filed a frivolous asylum application after
receiving proper notice of the consequences of doing so. While Ruga’s petition for
review of the BIA order was pending in this Court,2 she also filed a motion for
reconsideration.
2
This Court affirmed the BIA’s order. Ruga v. U.S. Att’y Gen., 757 F.3d 1193 (11th Cir. 2014).
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In its denial of Ruga’s motion to reconsider, the BIA concluded that it did
not err in holding that Ruga had received adequate notice of the consequences of
filing a frivolous asylum application. The BIA explained that every federal circuit
to consider the issue has held that the warning in the asylum application is
sufficient to give notice. The BIA also rejected Ruga’s attempt to distinguish her
case on the basis that she affirmatively filed an asylum application rather than
asserting asylum as a defense to deportation proceedings. The BIA explained that
Ruga also failed to show error in its holding that she was barred from relief under
the INA for filing a frivolous asylum application.
On appeal, Ruga argues that the BIA engaged in impermissible fact-finding
in its order denying her motion to reconsider. She also argues that the BIA erred in
determining that she knowingly filed a frivolous asylum application. The
government responds that Ruga did not exhaust her arguments before the BIA, and
that the BIA did not abuse its discretion in denying her motion to reconsider.
DISCUSSION
“We review the BIA’s denial of a motion to reconsider for abuse of
discretion.” Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007)
(quotation omitted). Our review “is limited to determining whether there has been
an exercise of administrative discretion and whether the matter of exercise has
been arbitrary or capricious.” Garcia-Mir v. Smith, 766 F.2d 1478, 1490 (11th Cir.
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1985) (per curiam) (quotation omitted). “[A] motion that merely republishes the
reasons that had failed to convince the tribunal in the first place gives the tribunal
no reason to change its mind.” Calle, 504 F.3d at 1329 (quotation omitted).
First, Ruga’s argument that the BIA engaged in fact-finding in denying her
motion to reconsider is without merit. Though she is correct that the BIA is not
permitted to engage in fact-finding, 8 C.F.R. § 1003.1(d)(3)(iv), she fails to
“specify the errors of law or fact in the [BIA’s] previous order.” 8 U.S.C.
§ 1229a(c)(6)(C). Ruga points to no specific facts that the BIA impermissibly
found. And our review of the BIA order does not reveal any impermissible fact-
finding.
Second, Ruga’s remaining arguments on appeal were not in her motion for
reconsideration. Specifically, Ruga asserts here that (1) there was no direct,
extrinsic evidence that she “made” or “filed” a frivolous asylum application; (2)
the BIA’s finding that she knowingly and deliberately fabricated material elements
of her asylum application was not supported by a preponderance of the evidence;
(3) the BIA’s denial of her motion to reconsider is not supported by reasonable,
substantial, and probative evidence because her 2-year delay was not attributable to
her and therefore should not be “deliberate action”; and (4) the BIA did not comply
with the procedural requirements for a frivolousness finding. All of these
arguments are unexhausted, and this Court lacks jurisdiction to consider them.
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Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250–51 (11th Cir. 2006)
(per curiam) (dismissing petition for lack of jurisdiction and explaining that
petitioner must have exhausted claims by raising them before the agency, even if
those claims were discussed sua sponte by the BIA). Finally, Ruga has abandoned
any other arguments relating to the BIA’s denial of her motion to reconsider
because she failed to raise them on appeal. See Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam).
PETITION DENIED IN PART, DISMISSED IN PART.
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