FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DEC 07, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-12749

Non-Argument Calendar

________________________

Agency No. A78-953-498

VILMA GLORIA RUANO DE ESPINOZA, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(December 7, 2007)

Before MARCUS, WILSON and FAY, Circuit Judges.

PER CURIAM:

Vilma Gloria Ruano De Espinoza (“Ruano”), a native and citizen of El 

Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”)
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denial of her motion for reconsideration/motion to reopen. Ruano argues that the

BIA abused its discretion by denying her motion for reconsideration/motion to

reopen because she was denied the opportunity to apply for voluntary departure. 

Ruano contends that the Immigration Judge (“IJ”) and the BIA erred in issuing a

final order of removal before the scheduled master calendar hearing, at which she

could have applied for voluntary departure. Second, Ruano asserts that she had

previously filed an application for special rule cancellation of removal pursuant to

the Nicaraguan Adjustment and Central American Relief Act (“NACARA”),

Pub.L.No. 105-100, 202, 111 Stat. 2160, 2193 (1998), and contends that she did

not abandon her application for such relief because a copy of her previous

application was already included in the administrative record.

For the reasons set forth more fully below, we deny the petition for review in

part and dismiss the petition for review in part.

We review the BIA’s denial of a motion for reconsideration and a motion to

reopen for an abuse of discretion. Assa’ad v. U. S. Att’y Gen., 332 F.3d 1321,

1341 (11th Cir. 2003) (motion for reconsideration); Gbaya v. U.S. Att’y Gen., 342

F.3d 1219, 1220 (11th Cir. 2003) (motion to reopen). Judicial review of the denial

of discretionary relief in this context “is limited to determining whether there has

been an exercise of administrative discretion and whether the matter of exercise

has been arbitrary or capricious.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149

(11th Cir. 2005) (quotation omitted).
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After the BIA has affirmed an IJ’s order of removal, the alien may seek

reconsideration on the ground that the BIA has made a legal or factual error. See

INA § 240(c)(6); 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1). A motion

for reconsideration must specify the errors of law or fact in the previous order and

be supported by pertinent authority. 8 U.S.C. § 1229a(c)(6)(C). Motions to

reconsider are disfavored in removal proceedings. See INS v. Doherty, 502 U.S.

314, 323, 112 S.Ct. 719, 724-25, 116 L.Ed.2d 823 (1992) (discussing motions to

reopen and explaining that such motions are disfavored because, “as a general

matter, every delay works to the advantage of the deportable alien who wishes

merely to remain in the United States”). 

Under 8 C.F.R. § 1003.2(c)(1), “[a] motion to reopen proceedings shall state

the new facts that will be proven at a hearing to be held if the motion is granted.” 

“A motion to reopen proceedings shall not be granted unless it appears to the [BIA]

that evidence sought to be offered is material and was not available and could not

have been discovered or presented at the former hearing. . . .” Id. In addition, a

motion to reopen “for the purpose of affording the alien an opportunity to apply for

any form of discretionary relief [shall not] be granted if it appears that the alien’s

right to apply for such relief was fully explained to him or her” and the alien was

afforded an opportunity to apply for such relief. Id. 
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We have previously held that:

[a]t a minimum, there are at least three independent grounds upon

which [the BIA] may deny a motion to reopen: 1) failure to establish a

prima facie case; 2) failure to introduce evidence that was material

and previously unavailable; and 3) a determination that despite the

alien’s statutory eligibility for relief, he or she is not entitled to a

favorable exercise of discretion. 

Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001). The BIA retains

broad discretion to deny a motion to reopen and may do so “even if the party

moving has made out a prima facie case for relief.” Anin v. Reno, 188 F.3d 1273,

1279 (11th Cir. 1999) (quotation and citation omitted). 

Here, the BIA construed Ruano’s motion before it as a motion for

reconsideration. However, Ruano failed to specify any errors of law or fact in

either the IJ’s or the BIA’s orders. Instead, Ruano asserted a new claim – that the

IJ denied her due process rights by entering a final order of removal because

voluntary departure was still available to her. To the extent that Ruano asked the

BIA to reopen the proceedings to allow her to seek voluntary departure, she failed

to submit any evidence to show prima facie eligibility for such relief or assert any

facts or evidence that could not have been discovered or presented to the IJ during

the proceedings below. To the contrary, the record demonstrates that Ruano,

represented by counsel, had notice of, and numerous opportunities to request, such

relief. Moreover, even assuming that Ruano presented evidence of her eligibility

for voluntary departure, the BIA nevertheless has discretion to deny her motion to
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reopen. Anin, 188 F.3d at 1279. Accordingly, the BIA did not abuse its discretion

in denying Ruano’s motion for reconsideration/motion to reopen, and we deny the

petition for review in this respect.

We need not address Ruano’s remaining claim that her application for

NACARA relief should have been deemed filed in light of the fact that a copy of

her previous application for such relief was already included in the administrative

record. Ruano failed to raise this claim before the BIA and, thus, we lack

jurisdiction to review it. See 8 U.S.C. § 1252(d)(1); Sundar v. INS, 328 F.3d 1320,

1323 (11th Cir. 2003) (determining that we “lack jurisdiction to consider claims

that have not been raised before the BIA”). Although we have indicated that the

exhaustion requirement of § 1252(d)(1) may not apply to prohibit review of certain

constitutional claims, we have determined that the requirement does apply in

circumstances where, as here, the claim at issue is a procedural due process claim. 

Compare Sundar, 328 F.3d at 1325 (acknowledging that constitutional challenges

that cannot be resolved by a BIA decision may not require exhaustion) with

Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1251 (11th Cir. 2006)

(holding that petitioner’s allegation of a due process violation was “precisely the

kind of procedural error which requires exhaustion”). Accordingly, we dismiss the

petition for review in this respect.

In light of the foregoing, Ruano’s petition for review is

DENIED IN PART, DISMISSED IN PART.