FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 14, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-14150

Non-Argument Calendar

________________________

BIA No. A78-350-672

JOSE MANUEL PAEZ, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

 (September 14, 2006)

Before DUBINA, BARKETT and HULL , Circuit Judges.

PER CURIAM:
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Jose Manuel Paez, a native and citizen of Colombia, proceeding pro se,

petitions for review of the Board of Immigration Appeal’s (“BIA”) decision to

deny his motion to reconsider his motion to reopen. On appeal, Paez argues that he

provided sufficient evidence to the BIA concerning the bona fides of his marriage,

and, thus, the BIA erred by denying his motion to reopen.

We consider de novo whether we have subject-matter jurisdiction. Brooks

v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002). By statute, an alien seeking

review of a final order of the BIA must file a petition for review within 30 days of

the issuance of the final order. INA § 242(b)(1); 8 U.S.C. § 1252(b)(1). “[T]he

statutory limit for filing a petition for review in an immigration proceeding is

‘mandatory and jurisdictional,’ [and, therefore,] it is not subject to equitable

tolling.” Dakane v. U.S. Attorney Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005)

(quoting Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 1549, 131 L.Ed.2d 465

(1995)). The Supreme Court has stated that the statute requires that each denial

from the BIA have a separate petition of review. See. Stone 514 U.S. at 394, 115

S.Ct. at1543-44.

Because, as to his motion to reopen, Paez’s only petition for review was not

filed within the applicable statutory time limit, his arguments regarding the merits

of that motion are not properly before us, and we dismiss the petition as to that

issue.
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Paez also asserts that the BIA failed to consider and correctly analyze the

evidence he submitted in his motion to reconsider, causing him and his wife

irreparable harm, and, if the case was remanded to the Immigration Judge, the

government could examine him and his wife concerning the genuineness of their

marriage. Paez, however, failed to address the BIA’s stated reasons for denying

his motion to reconsider, namely that: (1) Paez had failed to show an error of law

or fact in the denial of his motion to reopen; and (2) because the motion to

reconsider only submitted more evidence regarding whether Paez’s marriage was

bona fide, it was in effect, a numerically barred motion to reopen. 

We review the BIA’s denial of a motion for reconsideration for an abuse of

discretion. Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). 

A motion for reconsideration “shall specify the errors of law or fact in the previous

order and shall be supported by pertinent authority.” INA § 240(c)(6)(C); 8 U.S.C.

§ 1229a(c)(6)(C); see also 8 C.F.R. § 1003.2(b)(1) (same). We have held that a

motion that wishes to introduce new evidence should be construed as a motion to

reopen. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1301 (11th Cir. 2001)

(construing a motion to remand that introduced new evidence as a motion to

reopen). Judicial review of the denial of a motion to reopen is “limited to

determining ‘whether there has been an exercise of administrative discretion and

whether the matter of exercise has been arbitrary or capricious.’” Garcia-Mir v.
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Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (citation omitted). Additionally, only

one motion to reopen is allowed. See INA § 240(c)(7)(A); 8 U.S.C.

§ 1229a(c)(7)(A). 

The BIA did not err in denying the motion for reconsideration, as it failed to

argue or provide evidence regarding a legal or factual error in the BIA’s decision

denying his motion to reopen. Additionally, as Paez’s motion merely submitted

more evidence, it was, in effect, a motion to reopen, which was barred because he

previously had submitted a motion to reopen.

Upon review of the record and upon consideration of the briefs, we find no

reversible error. For the above stated reasons, we dismiss the petition in part and

deny the petition in part.

PETITION DISMISSED IN PART, DENIED IN PART.