Lidijawati v. U.S. Attorney General , 416 F. App'x 818 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
JAN 28, 2011
No. 10-13327 JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A096-104-145
FNU LIDIJAWATI,
CAMELIA GUNAWAN,
lllllllllllllllllllll Petitioners,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 28, 2011)
Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
First Name Unknown (“FNU”) Lidijawati, and her daughter, Camelia
Gunawan, are natives and citizens of Indonesia. They petition this court to review
an order issued by the Board of Immigration Appeals (“BIA”) refusing to
reconsider/reopen a final order denying their application for asylum,withholding
of removal under the Immigration and Nationality Act (“INA”), and relief under
the U. N. Convention Against Torture ("CAT"). Petitioners contend (1) that the
BIA should have reconsidered the final order because the BIA erred in finding that
their experiences in Indonesia did not rise to the level of persecution, and that they
did not have a well-founded fear of future persecution if returned to Indonesia, and
(2) that the BIA should have reopened their removal proceedings because the
articles they submitted with their motion were material to their particular
circumstances.
I.
We review the BIA’s denial of a motion to reconsider for abuse of
discretion. Abdi v. U.S. Attorney Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). Our
review is limited to determining whether the BIA exercised “administrative
discretion” and, if so, whether its decision was “arbitrary or capricious.” Id.(quoting Garcia-Mir v. Smith, 766 F.2d 1478, 1490 (11th Cir. 1985)). Where, as
here, the petitioners fail to file a petition for review from the underlying denial of
asylum, withholding of removal, or CAT relief, within 30 days of the final
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decisioin, we lack jurisdiction to review the original denial of relief. See INA
§ 242(b)(1), 8 U.S.C. § 1252(b)(1); Dakane v. U.S. Att'y Gen., 399 F.3d 1269,
1272 n. 3 (11th Cir. 2005).
A properly presented motion to reconsider “shall state the reasons for the
motion by specifying the errors of fact or law in the prior Board decision and shall
be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1); see also 8 U.S.C.
§ 1229a(c)(6)(C). A motion to reconsider that merely restates the arguments the
BIA previously rejected provides no reason for the BIA to change its prior
decision. Calle v. U.S. Att'y Gen., 504 F.3d 1324, 1329 (11th Cir. 2007).
"Therefore, 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.The petitioners did not provide any reason in their motion for the BIA to
change its decision. When it originally denied relief in 2009, the BIA concluded
that their testimony, even if presumed credible, did not demonstrate acts rising to
the level of past persecution. It likewise found that, based on the State
Department’s 2007 assessments of Indonesia’s record for human rights and
religious freedom, it was not more likely than not that Lidijawati and Gunawan
would be persecuted upon their return. Therefore, since their motion for
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reconsideration did not specify any errors of fact or law in the BIA’s prior
decision, but merely reiterated arguments already considered and rejected, the BIA
did not abuse its discretion in denying it.
II.
The BIA’s denial of a motion to reopen is reviewed for an abuse of
discretion. Verano-Velasco v. U.S. Attorney Gen., 456 F.3d 1372, 1376 (11th Cir.
2006). The BIA will not grant a motion to reopen “unless it appears to the Board
that evidence sought to be offered is material and was not available and could not
have been discovered or presented at the former hearing.” 8 C.F.R.
§ 1003.2(c)(1). Affidavits or other evidentiary material that state new facts, to be
proven at a hearing if the motion is granted, must accompany the motion. Verano-
Velasco, 456 F.3d at 1376.
Petitioners failed to offer new, material facts in support of their motion. In
the absence of any assertion from them that the evidence now presented could not
have been previously discovered, they did not state a basis on which to reopen
their case. See 8 C.F.R. § 1003.2(c)(1). Thus, the BIA did not abuse its discretion
by denying their motion.
PETITION DENIED.
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