Alvaro Justo Mojica-Sanchez v. U.S. Atty General , 276 F. App'x 882 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 09, 2007
No. 07-10779 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A97-185-474
ALVARO JUSTO MOJICA-SANCHEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 9, 2007)
Before ANDERSON, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Alvaro Justo Mojica-Sanchez, a citizen and native of Colombia, with his
wife and three children as riders, petitions for review of the Board of Immigration
Appeals’s (“BIA”) final order of removal affirming the Immigration Judge’s (“IJ”)
denial of asylum, withholding of removal, and relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (“CAT”), and the BIA’s subsequent denial of a motion to reconsider.
BACKGROUND
Mojica-Sanchez asserted that while living with his family in Bogota,
Columbia, he participated in Liberal Party activities by voluntarily working on a
committee for a campaign defending of human rights. He began providing
logistical support and conducting education talks in 1997. In early 1998, Mojica-
Sanchez learned that the committee had been receiving written and telephonic
threats. The campaign ended in mid-1998. However, in mid-1999, Mojica-
Sanchez received a threat by phone, and fled the county. He returned home, found
the situation unchanged, and decided to move his family to the United States.
Mojica-Sanchez entered the United States on November 25, 1999 on a non-
immigrant visa. On June 17, 2003, he was served with a notice to appear for
having overstayed his visa. His application for asylum was denied by the asylum
officer hearing his case, and referred to an immigration judge (“IJ”) for removal.
The IJ determined that Mojica-Sanchez lacked the extraordinary or changed
circumstances needed to consider his asylum application. The BIA affirmed, and
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denied Mojica-Sanchez’s motion for reconsideration.
DISCUSSION
I.
We lack jurisdiction to consider the merits of the underlying removal order,
but can consider the denial of the motion for reconsideration. Mojica-Sanchez had
30 days after the September 29, 2006, entry of the BIA’s order affirming the IJ’s
denial of asylum, withholding of removal, and CAT relief, to file his petition for
review. See 8 U.S.C. § 1252(b)(1). Mojica-Sanchez filed a motion for
reconsideration with the BIA, which was denied on January 26, 2007. He did not
file his petition until February 22, 2007. The statutory time limit for filing a
petition for review in an immigration case is mandatory, jurisdictional, and not
suspended or tolled by the filing of a motion to reconsider. Dakane v. U.S. Att'y.
Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005) (per curiam). Because Mojica-
Sanchez’s petition is untimely as to the September 29, 2006 BIA decision, we do
not have jurisdiction to review that decision. However, it is timely as to the BIA
order denying the motion for reconsideration, and we have jurisdiction to review
that decision.
II.
Mojica-Sanchez argues that the BIA erred (1) by requiring him to prove to
the IJ that he fell within the changed-circumstances exception to the time limit for
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filing asylum applications, (2) by failing to review the IJ’s determination that
Mojica-Sanchez could relocate within Columbia, and (3) denying him CAT relief
where the Columbian government has willfully accepted the Revolutionary Armed
Forces of Columbia’s (“FARC”) acts of torture. We review the denial of a motion
to reconsider for an abuse of discretion. Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321,
1341 (11th Cir. 2003). “We review the BIA’s statutory interpretation de novo, but
will defer to the BIA’s interpretation of a statute if it is reasonable and does not
contradict the clear intent of Congress.” Jaggernauth v. U.S. Att’y Gen., 432 F.3d
1346, 1350 (11th Cir. 2005) (per curiam).
Mojica-Sanchez contends that, once he had proven to an asylum officer that
he fell within the changed-circumstances exception to the normal one-year time
limit for filing an asylum application, he was not required to re-prove it to the IJ.
To establish asylum eligibility, an alien must show that he is a refugee because he
has suffered past persecution or a well-founded fear of future persecution. 8
C.F.R. § 208.13(a)-(b). In addition, an asylum applicant has the burden of proving
that his petition was timely or fell into the changed or extraordinary circumstances
exceptions from 8 U.S.C. § 1158. 8 C.F.R. § 208.4(a)(2). An asylum
determination may be made by either an asylum officer, who has initial jurisdiction
over an asylum, or an IJ, upon referral from the asylum officer. See 8 C.F.R.
§ 208.2(a)-(b); 8 C.F.R. § 208.14(a)-©). Once referred to the IJ, the IJ obtains
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exclusive jurisdiction over the asylum application. 8 C.F.R. § 208.2(b).
The BIA did not abuse its discretion in denying Mojica-Sanchez’s motion to
reconsider because neither the IJ nor the BIA was bound by the asylum officer’s
determination that Mojica-Sanchez has shown extraordinary or changed
circumstances. In his removal proceedings before the IJ, Mojica-Sanchez had the
burden of proving any ground on which he should receive relief from removal. 8
C.F.R. § 1240.8(d). In order to receive asylum, an alien must show both a timely
application and persecution. 8 C.F.R. §§ 208.4(a)(2), 208.13(a)-(b). As such,
Mojica-Sanchez had the burden of showing that he met all of these requirements.
While the Federal Regulations includes exceptions to this general burden-of-proof
rule, see, e.g., 8 C.F.R. § 208.16(b)(1)(ii) (placing the burden of proof on the
government to show that an alien could not reasonably relocate within his country
of origin, once the alien has established past persecution), it contains no exception
for an issue that may have been previously considered by an asylum officer.
Mojica-Sanchez points to a code provision that gives the asylum officer the
authority to make a timeliness determination, but the same subsection also provides
the IJ and BIA with authority to make this determination, see 8 C.F.R.
§ 208.4(a)(1). Mojica-Sanchez presents no compelling argument for why the
asylum officer’s determination should be controlling, especially after removal
proceedings have been initiated and the IJ has exclusive jurisdiction over the
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asylum application, see 8 C.F.R. § 208.2(b).
Next, Mojica-Sanchez argues that the BIA abused its discretion by failing to
review the IJ’s determination that he could have relocated within Colombia. To
obtain withholding of removal, an alien must show that it is more likely than not
that he will be persecuted upon being returned to his country. Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005) (per curiam). Where an alien has
shown past persecution, it is presumed that his life or freedom would be threatened
if returned to his native country, but the government can rebut this presumption by
showing that the alien could relocate to another part of his native country and that
it would be reasonable for him to do so. Mendoza v. U.S. Att’y Gen., 327 F.3d
1283, 1287 (11th Cir. 2003) (citing 8 C.F.R. § 208.16(b)(1)). Internal relocation is
only an issue if an applicant for withholding of removal can otherwise show past
persecution or a future threat to life or freedom. See 8 C.F.R. § 208.16(b). As
Mojica-Sanchez failed to show either past persecution or a future threat, the BIA
did not abuse its discretion when it declined to examine the moot issue of internal
relocation.
Finally, Mojica-Sanchez argues that the Colombian government has
willfully accepted FARC’s acts of torture and that, as such, he is entitled to CAT
relief. CAT provides relief for an alien who can show that it is more likely than
not that he will be subjected to torture if removed. 8 C.F.R. § 208.16(c)(2).
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However, Mojica-Sanchez’s motion for reconsideration did not specify any errors
of fact or law in the BIA’s final order affirming the IJ’s decision, but merely
reiterated his prior arguments on this point. A motion for reconsideration should
specify the reason for the motion by pointing to such errors. See INA §
240(c)(6)©); 8 U.S.C. § 1229a(c)(6)©); 8 C.F.R. § 1003.2(b)(1). Thus, the BIA
did not abuse its discretion in denying the motion on this issue.
III.
After careful consideration of the briefs of the parties, and thorough review
of the record, we find no reversible error. Accordingly, we DISMISS Mojica-
Sanchez’s petition as it pertains to the BIA’s September 26, 2006, order, and
DENY the remainder.
PETITION DISMISSED IN PART, DENIED IN PART.
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