UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

CARLOS ENRIQUE RUBIO-MONTANO; GLORIA LETICIA REGALDO-HORTA, Petitioners,

v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. No. 13-9518 (Petition for Review)

ORDER AND JUDGMENT *

Before LUCERO , Circuit Judge, BRORBY , Senior Circuit Judge, and BACHARACH , Circuit Judge.
Carlos Enrique Rubio-Montano a nd Gloria Leticia Regaldo-Horta (“Petitioners”), a married couple who are nativ es and citizens of Me xico, seek review of the denial of their moti on for reconsideration by the Bo ard of Immigration Appeals (“BIA”). We deny the petition.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 4, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - I Petitioners were admitted to the United States in September 2001 as nonimmigrant visitors authorized to re main until March 25, 20 02. They stayed beyond that date without permission and took up residence in Oklahoma with the intent to stay permanently. In 2005, they were placed in removal proceedings. They conceded removability but successfully obt ained an administrative closure of the proceedings to pursue a private bill in Congress to gain citi zenship. After their effort proved fruitless, the removal proceedings were reopened, and in 2010 they appeared before an Immigration Judge (“IJ”). They did not seek any form of relief from removal but instead filed a motion to term inate the proceedings on the ground that, under the Law of Nations, they are de facto Oklahoma citiz ens, and there is no power enumerated in the Constitution that gives the federal governme nt jurisdiction to remove Oklahoma citizens who were lawf ully admitted to the United States. Therefore, they argued, the federal govern ment could not authorize the Immigration Court to hold removal proceedings, and onl y the State of Okla homa could remove them. The government responded that the Immigration Court had exclusive jurisdiction under 8 U.S.C. § 1252(g). The IJ rejected Petitioners’ arguments, observing that the Constitution gives Congress the authority to “esta blish an uniform Rule of Na turalization,” U.S. Const. art. I, § 8, cl. 4 (“Naturalization Clause ”), and Congress has done precisely that in- 3 - enacting a plenary and exclus ive federal statutory immigr ation framework. The IJ therefore determined he had jurisdicti on and ordered Petitioners removed. Petitioners appealed to the BIA, largel y reiterating their previous arguments but also suggesting that naturalization a nd removal were separate powers. The purpose of the Naturalization Clause, Pet itioners argued, was to ensure uniform citizenship requirements among the states. Petitione rs claimed that the Naturalization Clause grants no removal power to the federal government. The government responded with a motion for su mmary affirmance. The BIA affirmed, citing Arizona v. United St ates, 132 S. Ct. 2492 (2012 ), and Toll v. Moreno, 458 U.S. 1 (1982), for the proposition th at the federal gove rnment has broad authority over immigration and alien status. That power, the BIA said, derives from the Naturalization Clause and the federal government’s “inherent power as sovereign to control and conduct relations with fore ign nations.” The BIA concluded that the federal government has exclusive power “to promulgate laws governing the admission and removal of aliens,” a nd therefore the Immigration Court had jurisdiction under § 1252(g). Petitioners did not seek judicial review of the BIA’s decision. They instead filed a motion for reconsidera tion. In addition to resta ting their previous arguments, they contended that Arizona was inapplicab le because it did not concern the precise jurisdictional issue Petitione rs raised. They also claimed that, based on the- 4 - government’s failure to file a response brief, the BIA should have deemed their appeal unopposed and terminat ed the removal proceedings. The BIA denied reconsideration, finding no error in its previous decision and concluding that a substantial portion of th e motion consisted of the same arguments advanced in the underlying appeal. The BIA also rejected the ar gument that it should have considered the moti on unopposed because “secti on 4.12(a) of the [BIA’s] Practice Manual expressly provides that ‘the failure of the opposing party to affirmatively oppose an appeal does not au tomatically result in the appeal being sustained,’” and, in the alternative, th e government had opposed the motion by filing a motion for summary affirmance.
II To the extent Petitioners seek to challenge the BI A’s underlying order upholding the IJ’s decision, we lack jurisd iction to review that order because they “did not timely file a petition for review from that order with in thirty days as required by 8 U.S.C. § 1252(b)(1).” In fanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004). Their petition is timely with respect to th e BIA’s order denying their motion for reconsiderati on, and we therefore have ju risdiction to review that denial. We review the denial of a motion for reconsiderat ion for abuse of discretion, Belay-Gebru v. INS, 327 F.3d 998, 1000 n.5 (10th Cir. 2003), and any legal or constitutional questions de novo, Lore nzo v. Mukasey, 508 F.3d 1278, 1282 (10th Cir. 2007). “The BI A abuses its discretion when its decision provides no- 5 - rational explanation, inexpli cably departs from establishe d policies, is devoid of any reasoning, or contains only su mmary or conclusory statem ents.” Infanzon, 386 F.3d at 1362 (quotation omitted). Petitioners have failed to demonstrate any error. We first reject Petitioners’ contention that the BIA ignored points of legal error raised in their motion. The BIA correctly denied reconsideration of any pr eviously raised argum ents. See Ahmed v. Ashcroft, 388 F.3d 24 7, 249 (7th Cir. 2004); In re O-S-G, 24 I. & N. Dec. 56, 58 (BIA 2006). Second, the BIA did not—as Petitioners argue—refuse to treat their motion as unopposed. Instead , it properly applied § 4.12( a) of its Practice Manual, which states in relevant pa rt that “the [BIA] may co nsider the opposing party’s silence in adjudicating the appeal, [but] th e silence does not dictate the disposition of the appeal.” Third, although the BIA did not explicitly provide an explan ation for rejecting Petitioners’ argument that Arizona was ina pplicable, the motion for reconsideration fails to demonstrate any error of law in the BIA’s disposition of the appeal. In relevant part, the Arizona Court stated that “[t]he Government of the United States has broad, undoubted power over the subject of immigration a nd the status of aliens.” Arizona, 132 S. Ct. at 2498. And prior to Arizona, the Supreme Court explained that the federal government, not the states, has the power to regulate admitted aliens before naturalization: The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may- 6 - remain, regulation of their conduct be fore naturalization, and the terms and conditions of their naturalization. Under the Constitution the states are granted no such powers; they can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states. Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419 (1948) (citation omitted); see also Carlson v. Landon, 342 U.S. 524, 534 (195 2) (“So long . . . as [legally admitted] aliens fail to obtain and mainta in citizenship by naturalizati on, they remain subject to the plenary power of Congress to expel th em under the sovereign right to determine what noncitizens shall be permitted to rema in within our borders.”). The Court has further stated that “Federal authority to regulate the st atus of aliens derives from various sources,” including the Naturali zation Clause and the Foreign Commerce Clause, as well as the federal government’s “broad authority over foreign affairs.” Toll, 458 U.S. at 10. Petiti oners’ claim that their status as inhabitants of Oklahoma prevents the federal government from enfo rcing its immigration laws against them lacks any basis in preceden t. Petitioners conceded th at they were statutorily removable and the BIA properly concluded th at it had jurisdiction over Petitioners. We therefore conclude that the BIA did no t abuse its discretion in denying the motion for reconsideration.- 7 - III
We DENY the petition for review.

Entered for the Court

Carlos F. Lucero Circuit Judge