FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 December 27, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-12112

Non-Argument Calendar

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BIA Nos. A96-292-484 & A96-292-485

 

OLMA LILIANA RICAURTE RODRIGUEZ, 

NESTOR FABIO ARBELAEZ, 

MATEO ARBELAEZ RICAURTE, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(December 27, 2006)

Before ANDERSON, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

Petitioners Olma Liliana Ricaurte Rodriguez (“Ricaurte”) and Nestor Fabio
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Arbelaez and their son, Mateo Arbelaez Ricaurte, seek review of: (1) the Board of

Immigration Appeals’ (“BIA”) December 28, 2005, order affirming the

Immigration Judge’s (“IJ”) removal order and dismissing their appeal from the

IJ’s denial of their application for asylum and withholding of removal under the

Immigration and Nationality Act (“INA”), and relief under the United Nations

Convention on Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (“CAT”), 8 U.S.C. §§ 1158, 1231, 8 C.F.R. § 208.16(c); and (2) the

BIA’s March 13, 2006, order denying their motion to reconsider. 

I. Jurisdiction Over BIA’s Order Dismissing Petitioners’ Appeal

On appeal, Ricaurte primarily argues that the BIA erred in affirming the IJ’s

order denying her application for asylum and withholding of removal because she

demonstrated past persecution and a well-founded fear of future persecution. The

government contends that we lack jurisdiction to review the BIA’s December 28,

2005, order affirming the IJ’s removal order because Ricaurte did not file a timely

petition for review from that decision. 

“We review questions of subject matter jurisdiction de novo.” Brooks v.

Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002). While we generally have

jurisdiction to review final orders of removal, the petition for review must be filed

within 30 days of the date of the final order of removal. INA § 242(a)(1), (b)(1), 8

U.S.C. § 1252(a)(1) and (b)(1). We have held that “[s]ince the statutory limit for
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filing a petition for review in an immigration proceeding is ‘mandatory and

jurisdictional,’ it is not subject to equitable tolling.” Dakane v. U.S. Att’y Gen.,

399 F.3d 1269, 1272 n.3 (11th Cir. 2005) (citing Stone v. INS, 514 U.S. 386, 405,

115 S. Ct. 1537, 1549, 131 L. Ed. 2d 465 (1995)). A timely motion to reconsider

filed with the BIA does not suspend the finality of the underlying BIA order and

does not toll the review period. Stone, 514 U.S. at 405-06, 115 S. Ct. at 1549

(construing the former 90-day period for filing a petition for review under INA

§ 106(a)(1), 8 U.S.C. § 1105(a)). 

The BIA’s final order of removal in this case was issued on December 28,

2005, when the BIA dismissed the petitioners’ appeal from the IJ’s order denying

their application for asylum, withholding of removal, and CAT relief. See 8 C.F.R.

§ 1241.1(a) (providing that “[a]n order of removal made by the immigration judge

at the conclusion of proceedings under section 240 of the Act shall become

final . . . [u]pon dismissal of an appeal by the Board of Immigration Appeals”). 

Although the petitioners filed a timely motion to reconsider the BIA’s dismissal of

their appeal, the filing did not toll the limitations period for filing a petition for

review. Because the petitioners did not file their petition for review until April 7,

2006, more than 30 days after the BIA’s initial order dated December 28, 2005, we

lack jurisdiction to review the December 28, 2005, order. Accordingly, we do not

have jurisdiction over the petition for review to the extent that the petitioners are
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seeking review of the IJ’s order denying asylum, withholding of removal, and CAT

relief, or the BIA’s initial order dismissing their appeal from the IJ’s order. Hence,

the only issue on appeal we can review is whether the BIA abused its discretion in

denying the petitioners’ motion to reconsider, which is discussed below. 

II. Motion to Reconsider

On appeal, the petitioners argue that the BIA erred in finding that Ricaurte

did not provide evidence that her son was granted asylum. 

“We review the BIA’s denial of a motion to reconsider for abuse of

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

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); 8 C.F.R. § 1003.2(b)(1). A motion to

reconsider must specify the errors of law or fact in the previous order and be

supported by pertinent authority. INA § 240(c)(6)(C); 8 U.S.C. § 1229a(c)(6)(C). 

Here, we conclude from the record that the BIA did not abuse its discretion

in denying the petitioners’ motion to reconsider because (1) the petitioners did not

identify any errors of law or fact in the BIA’s order dismissing their appeal from

the IJ’s decision, as required by 8 U.S.C. § 1229a(c)(6)(C) and 8 C.F.R.

§ 1003.2(b)(1); (2) the majority of the petitioners’ brief only contains argument

concerning the merits of their claim for asylum and fails to set forth any facts or
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law relevant to the denial of their motion to reconsider; and (3) the record shows

that Ricaurte’s nephew was granted asylum, not her son. 

For the above-stated reasons, we dismiss the petition in part and deny it in

part.

PETITION DISMISSED IN PART, DENIED IN PART.