Mohammad Reza Omidian v. U.S. Atty. Gen. , 311 F. App'x 277 ( 2009 )

[DO NOT PUBLISH]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