Mohammad Reza Omidian v. U.S. Atty. Gen. ( 2009 )


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  •                                                                [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT            FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 08-11552                    FEBRUARY 11, 2009
    Non-Argument Calendar                THOMAS K. KAHN
    CLERK
    ________________________
    Agency No. A79-451-245
    MOHAMMAD REZA OMIDIAN,
    Petitioner,
    versus
    U.S. ATTORNEY GENERAL,
    Respondent.
    ________________________
    Petition for Review of a Decision of the
    Board of Immigration Appeals
    _________________________
    (February 11, 2009)
    Before BIRCH, CARNES, and HULL, Circuit Judges.
    PER CURIAM:
    Mohammad Reza Omidian, a citizen of Iran, petitions for review of the
    Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge
    (“IJ”)’s denial of his motion to vacate and reopen a 2006 removal order entered
    against him in absentia. In his petition, Omidian contends that he did not appear
    for his removal hearing because oral warnings about the consequences of failing to
    appear were read to him in English instead of his native language. He did not raise
    this argument in front of the BIA. Omidian also argues that his removal
    proceeding should have been automatically stayed pending the outcome of his
    petition.1 We dismiss his petition in part and deny it in part.
    We review de novo our subject matter jurisdiction, and we lack jurisdiction
    to consider a claim that was not raised before the BIA. Amaya-Artunduaga v. U.S.
    Att’y Gen., 
    463 F.3d 1247
    , 1250 (11th Cir. 2006). Although properly filed
    motions to reopen a removal order entered in absentia trigger automatic stays of
    deportation while those motions are being reviewed by an IJ or in “any properly
    filed administrative appeal,” 
    8 C.F.R. § 1003.23
    (b)(4)(iii)(C) (emphasis added),
    petitions for review of removal orders filed in this Court do not have the same
    result. Weng v. U.S. Att’y Gen., 
    287 F.3d 1335
    , 1336 (11th Cir. 2002). We have
    discretion to order such a stay, however, if an alien demonstrates “by clear and
    1
    Omidian also offers brief, undeveloped arguments that (1) his hearings in front of the IJ
    were procedurally insufficient and (2) the BIA erred by failing to consider various procedural
    deficiencies in the treatment of his political asylum application. We do not consider these
    arguments because “[w]hen an appellant fails to offer argument on an issue, that issue is
    abandoned.” Sepulveda v. U.S. Att’y Gen., 
    378 F.3d 1260
    , 1262 n.1 (11th Cir. 2004).
    2
    convincing evidence that the entry or execution of [an order for his removal] is
    prohibited as a matter of law.” 
    Id. at 1337
     (internal quotation marks omitted).
    Omidian did not raise his argument about the language of the oral warnings
    before the BIA2 ; thus, we do not have jurisdiction over that part of his petition.
    During our earlier consideration of Omidian’s motion to stay his removal, we
    noted that he had not met the “clear and convincing evidence” standard required by
    Weng. Nothing in his petition cures that failure, so we deny the part of his petition
    based on that issue.
    PETITION DISMISSED IN PART AND DENIED IN PART.
    2
    We note that Omidian has not gone the extra step of asserting in his petition that he did
    not understand the warnings given in English, which is likely because—as he admits in his
    application for asylum and withholding of removal—he is a fluent English speaker.
    3
    

Document Info

Docket Number: 08-11552

Judges: Birch, Carnes, Hull, Per Curiam

Filed Date: 2/11/2009

Precedential Status: Non-Precedential

Modified Date: 9/1/2023