NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0615n.06 No. 11-3591 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

MAHMOUD A BEL

AZ I Z MAHMO HASAN, Petitioner,

v. ERI C H. HOL DER, J R., Attorney Gene ral of the United States, Respondent. ) ) ) ) ) ) ) ) ) ) ) ON PETI TI ON F OR REVI EW FROM A FI NAL ORDER OF TH E BO ARD OF I MMI GRATI ON APPEAL S

BEFORE: M ARTIN and CLAY, Circuit Judges; HOOD, District Judge. *
P ER CURIAM . Mahmoud Abel Aziz Mahmo Hasa n petitions for revie w of an order by the Boa rd of I mmigra

tion Appeals (B I A). The BI A denied his motion for re consideration of its prior decision which a ffirme d an I mmigration J udg e’s ( I J ) denia l of Hasa n’s motion to reopen. Although Hasa

n on ce l i v ed in L ivonia, Michig an, he notified the immigra tion court on Oc t o b er 1 4 , 2008, that he had moved to an apar tment on Third Avenue in Br ookly n, New York. Hasa n also testified in May 2009 that he was living at the Br ookly n addre ss. An individual hear ing

was schedule d and a notice of that hear ing was then mailed to Hasa n at the Br ookly

n addr es s v i a reg ular mail. Howeve r, this letter was returne d as undelivera ble. The immigra tion court sent anot her letter on J une 3, 2009, informing Hasa n of his individual hear ing date. Ag ain, the letter was returne d

The Honora

ble J oseph M

. Ho od, United States District J udg e for the Easter n District of * Kentucky , sitti ng by

desig nation.No. 11-3591 - 2 -

as u n d el i v era

ble. When Hasa

n failed to appea

r at the J une 23, 2009, hear ing, the I J order ed hi m

remove d to I srae l. Hasa n then filed a motion to reope n his case with the I J , claiming that he had never rec eived notice of the J une 23 hear ing. Hasa n included a chang e-of

-addr ess form with his motion to reope n, indicating that he had moved to 7207 Fifth Av en u e i n Br ookly n, New York. The I J declined to reope n the case beca

use the court had followed regulatory proce dure when it sent Hasa n’s notice to his last known addre ss. The I J also found that Hasa n had intentionally evade d delivery

. On J uly 30, 2010, the BIA aff

irmed the I J ’s denial of Hasa n’s motion to reope n for the rea sons stated in the I J ’s decision. Hasa n filed a motion to rec onsid er the BI A’s J uly 30 decision, arguing that the BI A

err oneously aff

irmed the I J ’s decision beca use he had never actua lly rec eived notice of the hear ing,

an d h ad n o t s upplied a false addre ss, as the I J had implied. On May 9, 2011, the BI A denied t h e motion, construing it as both a motion t o re consider and a motion to reope n beca use Hasa n had proff ere d additional evidenc e to support the motion. The BI A determined that Hasa n was presenting arguments that could have been presente d in his initial appea l and, to that extent, prese nted nothing to war rant rec onsideration of its previous decision. The BIA also deter mined that, construed as a motion to reope n, the motion was untimely and number-ba

rre d, citing 8 U.S.C. § 1229a(c )(7) (A), 8 C.F.R. §§ 1003.2(c) (2), (c) (3) and 8 C.F.R. § 1003.23(b)( 4)(ii). Ha san filed a petition for review on J une 6, 2011, sum marily challeng ing the BI A’s May 9 decision, and arguing that the I J should not have order ed his remova l in absentia when he had ne ver r ece ived ac tual notice of the hear ing. Only the BI

A’s May 9, 2011, order denying rec onsideration and t he motion to reope n is befor e us for revie w. The BIA proper ly deter mined that the mo t i o n t o reope n was numerica lly barr ed. See 8 U.S.C. § 1229a(c )(7) (A); 8 C.F.R. § 100 3

. 2 (c)(2); see also Tapia-Martinez v.No. 11-3591 - 3 - Gonzales , 482 F.3d 417, 420–22 (6th Cir. 2007). Moreove r, none of the exceptions to these statutory and re g ulatory

rules applies. Concerning the motion to rec onsider, we revie w a BI A’s decision for an abuse of discretion. Sswajje v. Ashcroft , 350 F.3d 528, 532 (6th Cir

. 2 0 03). Pursuant to 8 C.F.R. § 1003.2(b)( 1), a motion for rec o n s i d er at i o n o f a decision by the BI A must “state the rea sons for the motion by specify ing the err ors of fac t or law” in t h e p ri o r d ecision, and must be “supported by pertinent authority .” Such a motion require s more than a prese ntation of the same fac ts and arguments alre ady considere d. Sswajje , 350 F.3d at 533. The BI A proper ly deter mined that the arguments that Hasa n raises could eit h er h av e been prese nted on appea l, or wer e based on claims and fac ts alre ady available and considere d by the I J and by the BI A. Thus, the BI A did not abuse its discretion in denying this motion. The pe tition for reviewis denied.