FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 23, 2007

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-14672

________________________

BIA Nos. 

A95-553-292 & A95-553-293

BEATRIZ HELENA CALLE, 

OCTAVIO ALBERTO MOLINA ARANGO, et al. 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(October 23, 2007)

Before DUBINA and MARCUS, Circuit Judges, and COOGLER,* District Judge.

____________________

*Honorable L. Scott Coogler, United States District Judge for the Northern District of Alabama,

sitting by designation.
Congress abolished the INS on March 1, 2003, and replaced it with the Department of 1

Homeland Security. See Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (2002). 

2

DUBINA, Circuit Judge:

Beatriz Helena Calle (“Calle”), on behalf of herself, her husband, and her

two children, petitions this court for review of the Board of Immigration Appeals’

(“BIA”) denial of her motion for reconsideration of the BIA’s denial of her motion

to reopen. The BIA denied Calle’s motion to reconsider as numerically barred

under 8 C.F.R. § 1003.2(b)(2). For the reasons set forth more fully below, we deny

the petition for review.

I. BACKGROUND

Calle, her husband, and their two children, all natives and citizens of

Colombia, entered the United States as visitors for pleasure. All remained beyond

their authorized dates, and, in July 2002, the former Immigration and

Naturalization Service (“INS”) served them with notices to appear, charging them 1

with removability pursuant to the Immigration and Nationality Act (“INA”) §

237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B).

Calle filed an application for asylum and withholding of removal under the

INA §§ 208, 241, and withholding of removal under the United Nations

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

Punishment (“CAT”), 8 C.F.R. § 208.16(c). In her application, Calle indicated that
3

she sought relief based on the persecution she suffered from the Revolutionary

Armed Forces of Colombia (“FARC”) due to her political opinion and membership

in a particular social group. After holding a removal hearing, the immigration

judge (“IJ”) dismissed Calle’s application for asylum as untimely without a

showing of extraordinary circumstances and denied her applications for

withholding of removal and CAT relief on the merits. Calle appealed the IJ’s

decision to the BIA, arguing that the IJ failed to consider or properly weigh the

evidence, including information regarding the country conditions in Colombia. 

See 8 C.F.R. § 208.16(c). The BIA adopted and affirmed the IJ’s decision,

including the IJ’s finding that neither extraordinary nor changed circumstances

excused the untimely filing. 

Calle thereafter moved the BIA to reconsider its decision, maintaining that

the BIA had not considered all of the evidence in her case nor the current

conditions in Colombia. She also argued that the changed conditions in Colombia

served as exceptional circumstances for her late filing of her asylum application. 

The BIA denied Calle’s motion for reconsideration, finding that Calle had

presented only “a general statement regarding deteriorating conditions, and [had]

not supported [that] statement with any evidence.” (R. Vol. 1 p. 59.)

Calle next filed with the BIA a motion to reopen its denial of her motion for

reconsideration, and she also filed a motion for stay of deportation. Calle argued
4

that her motion to reopen was based on changed country conditions. She asserted

that she was a target of the FARC, and that the FARC’s terrorism throughout

Colombia had continued and intensified. In support of her motion to reopen, Calle

submitted the following evidence: (1) a police report that Calle filed in March 2002

alleging the felony of illegal constraint; (2) a letter from her brother attesting to the

terrorism caused by the FARC in Colombia; (3) a June 2005 article from BBC

News detailing a FARC attack on Colombian troops and indicating that the FARC

was still a strong guerrilla army; (4) untranslated consolation cards; (5) a

September 2005 BBC News article indicating that the FARC would remain strong

despite a new Colombian law; (6) an October 2005 BBC News article detailing a

rebel attack on a Colombian town; (7) a January 2006 article from the Toronto Star

detailing a clash between the FARC and the Colombian Army; (8) an April 2005

Human Rights Watch article explaining that the FARC had been ordered to cease

its use of gas cylinder bombs; (9) a July 2005 Miami Herald article indicating that

the FARC was involved in all aspects of Colombian life, including politics,

kidnaping, and drug and weapons trafficking, and that the FARC was involved in

international relations; and (10) a copy of an I-130 petition for alien relative that

Calle’s sister, a United States citizen, filed on Calle’s behalf. 

The BIA denied Calle’s motion to reopen, finding that she failed to establish

a prima facie case of eligibility for asylum based upon changed country conditions. 
5

The BIA did not consider the consolation cards that Calle submitted as evidence

because those cards were not translated. The BIA further found that the police

report and consolation cards were not new or previously unavailable, as required

for a motion to reopen under 8 C.F.R. § 1003.2(c). The BIA also determined that

Calle’s remaining evidence showed that Colombia remained “a country filled with

civil strife and general conditions of lawlessness despite the peace accords,” but

that the evidence was not enough to warrant reopening Calle’s proceedings. (R.

Vol. 1 p. 25.) 

Calle then filed a “motion to reconsider denial of motion to reopen.” Calle

argued that the BIA improperly failed to consider the danger in Colombia that she

would face if forced to return. She maintained that her evidence showed changed

country conditions that put her life in more danger. Calle also submitted translated

copies of the condolence cards, which offered sympathy for the loss of Calle

herself and her son. She additionally submitted three news articles: (1) a 2006

CNN.com article indicating that the FARC had declared war on a smaller guerrilla

group; (2) a May 2006 VOA News article explaining that the Colombian president

blamed the FARC for an attack on an electoral office; and (3) a 2005 article from a

Russian news source detailing the FARC’s killing of police officers. 

The BIA denied Calle’s motion to reconsider on the grounds that it was

numerically barred under 8 C.F.R. § 1003.2(b)(2) because Calle previously filed a
6

motion to reconsider in the same proceedings. The BIA found that, “[t]he

regulations provide that motions to reconsider shall be limited to one motion to

reconsider in any case previously the subject of a final decision by the [BIA].” (R.

Vol. 1 p. 2.)

Calle argues before this court that the BIA abused its discretion in denying

as numerically barred her motion to reconsider the denial of her motion to reopen. 

Calle contends that the instant motion to reconsider was a new motion requesting

the BIA to reconsider its denial of her motion to reopen, as opposed to her first

motion to reconsider requesting that the BIA reconsider its order affirming the IJ’s

initial determination of removability. Thus, she maintains that the instant motion

to reconsider was not a second motion to reconsider the underlying decision to

deny her applications for asylum and withholding of removal. 

II. STANDARD OF REVIEW

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

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

III. DISCUSSION

According to the regulations governing numerical limits on motions to

reconsider:

A party may file only one motion to reconsider any given decision and

may not seek reconsideration of a decision denying a previous motion

to reconsider. In removal proceedings pursuant to section 240 of the
7

[INA], an alien may file only one motion to reconsider a decision that

the alien is removable from the United States.

8 C.F.R. § 1003.2(b)(2). 

Calle filed her original motion to reconsider seeking reconsideration of the

BIA’s affirmance of the IJ’s initial removability determination. Thereafter, Calle

filed a motion to reopen based upon changed country conditions. Calle’s next

motion to reconsider requested the BIA’s reconsideration of its order denying

Calle’s motion to reopen. The BIA found this motion to reconsider numerically

barred. The BIA stated that “[t]he regulations provide that motions to reconsider

shall be limited to one motion to reconsider in any case previously the subject of a

final decision by the [BIA].” (R. Vol. 1 p. 25.) 

The BIA’s interpretation of the regulation is broad and extends the language

beyond its plain meaning. The plain language of § 1003.2(b)(2) does not explicitly

prohibit such a filing. In fact, the regulation provides that, where an alien is in

removal proceedings pursuant to INA § 240, which proceedings the INS initiated

against Calle, “an alien may file only one motion to reconsider a decision that the

alien is removable from the United States.” 8 C.F.R. § 1003.2(b)(2) (emphasis

added). The regulation does not provide that an alien may file only one motion to

reconsider throughout her entire proceedings. To the contrary, the regulation’s use

of the singular terms “a decision” and “any given decision” suggests that an alien
8

may file a motion to reconsider as to each decision by the BIA that an alien is

removable. Under the language of the regulation, then, we conclude that Calle’s

motion to reconsider the BIA’s denial of her motion to reopen was not numerically

barred because it was the first motion to reconsider that BIA decision.

As to the merits of her motion to reconsider, Calle also argues that her

motion to reopen, and her instant motion to reconsider, provided sufficient

evidence to demonstrate changed country conditions that would have affected her

applications for relief. “A motion to reconsider shall state the reasons for the

motion by specifying the errors of fact or law in the prior [BIA] decision and shall

be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1). However, “[a]

motion that merely republishes the reasons that had failed to convince the tribunal

in the first place gives the tribunal no reason to change its mind.” Ahmed v.

Ashcroft, 388 F.3d 247, 249 (7th Cir.2004). Therefore, merely reiterating

arguments previously presented to the BIA does not constitute “specifying . . 

errors of fact or law” as required for a successful motion to reconsider. See 8

C.F.R. § 1003.2(b)(1). 

Here, the BIA made no determination as to whether Calle’s motion to

reconsider alleged errors of fact or law that the BIA committed in denying her

motion to reopen; rather, the BIA only dismissed Calle’s motion as numerically

barred. The Government nonetheless argues that Calle’s motion to reconsider
9

failed on the merits because her claim that the BIA did not consider the evidence

she submitted in support of her motion to reopen was not supported by the record. 

Because the BIA did not address the merits of Calle’s motion to reconsider, we

must determine whether we may decide Calle’s case on the merits in the first

instance, as the Government urges.

The Supreme Court has explained that, in cases on appeal where the BIA has

not addressed a particular issue that a petitioner put before it, “the proper course,

except in rare circumstances, is to remand to the agency for additional

investigation or explanation.” INS v. Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 355 

(2002) (per curiam) (quotation omitted). In Ventura, the BIA affirmed an IJ’s

denial of asylum on one ground, but did not address the IJ’s alternative holding

that improved country conditions were such that no realistic threat of persecution

remained. Id. at 13, 123 S. Ct. at 354. On appeal, the Ninth Circuit nonetheless

addressed the merits of the country conditions issue without remand to the BIA. 

Id. at 14, 123 S. Ct. at 354. The Supreme Court reversed, holding that the Ninth

Circuit “should have applied the ordinary ‘remand’ rule” because the BIA had “not

yet considered the ‘changed circumstances’ issue.” Id. at 17-18, 123 S. Ct. at 355-

56. The Supreme Court noted that the country report was ambiguous about the

evidence to be considered and that remand could lead to the presentation of further

evidence of current conditions, given that five years had elapsed since the report
See Hussain v. U.S. Att’y Gen., 229 Fed. Appx. 861, 865 n.5 (finding that case presented 2

a “rare instance” when remand was unnecessary because petitioner admitted that he would not be

entitled to relief if the matter were remanded to the BIA).

10

was written. Id. at 17, 123 S. Ct. at 356. 

Similarly, in Gonzales v. Thomas, 547 U.S. 183, 126 S. Ct. 1613 (2006) (per

curiam), the Supreme Court held that the Ninth Circuit erroneously determined an

alternative issue not reached by the BIA rather than remanding to the BIA. Id. at

186-87, 126 S. Ct. at 1614-15. In so holding, the Court noted that it could “find no

special circumstance here that might have justified the Ninth Circuit’s

determination of the matter in the first instance.” Id. at 187, 126 S. Ct. at 1615. 

This court has not addressed the applicability of the “rare circumstances”

exception to the “ordinary ‘remand’ rule” in a factual scenario such as the one

presented in this case. Recently, the Fourth Circuit faced the issue of whether the 2

BIA erred in denying a petitioner’s motion to reopen and disposing of his motion

to remand without explicitly addressing the motion to remand. Hussain v.

Gonzales, 477 F.3d 153, 155 (4th Cir. 2007). The court determined that the BIA

had erred in failing to address Hussain’s motion to remand, which motion Hussain

argued was necessary because he was eligible for an adjustment of status, but the

court nonetheless denied Hussain’s petition for review. Id. at 155-56. The court

determined that Hussain’s case fit within the exception to the “ordinary ‘remand’

rule” because Hussain’s case involved a legal question, as opposed to the factual
Other circuits have determined that Ventura does not require automatic remand at the 3

finding of an error by the BIA. See, e.g., Ghebremedhin v. Ashcroft, 392 F.3d 241, 242-43 (7th

Cir.2004) (stating that it is not usurping the BIA’s fact-finding role by reversing the IJ’s

eligibility determination instead of remanding to the BIA because the determination is contrary

to the law); Almaghzar v. Gonzales, 457 F.3d 915, 923 n.11 (9th Cir. 2006) (concluding that the

BIA had decided the merits of the petitioner’s CAT claim and determining that neither Ventura

nor Thomas require the circuit courts to “remand an issue to the agency when the agency has

already considered the issue,” the court deferred to the BIA’s finding and denied the petition for

review), cert. denied, 127 S. Ct. 1839 (2007); Zhao v. Gonzales, 404 F.3d 295, 305, 310-11 (5th

Cir.2005) (granting the petition for review and remanding to the BIA as to the BIA’s denial of

the petitioner’s asylum application and motion to reopen, but refusing to remand as to the

question of persecution because the BIA had already decided the issue).

11

questions that were at issue in Ventura and Thomas. Id. at 157. The court then

determined that Hussain was ineligible for relief because he could not establish a

prima facie case for the adjustment of his status, “a legal, not a factual,

conclusion.” Id. at 158. The court therefore held that, “[b]ecause the result of a

remand to the Board is a foregone conclusion such that remand would amount to

nothing more than a mere formality, we find that the Ventura ‘rare circumstances’

exception applies.” Id. 

3

Calle’s case presents “rare circumstances” such that remand is unnecessary. 
12

In this case, unlike Ventura and Thomas, and like Hussain, the undecided issue is

legal, not factual. Moreover, unlike Hussain, the legal issue in this case is

procedural. The issue the BIA avoided with its numerical-bar holding was whether

Calle specified “errors of fact or law in the prior [BIA] decision” and supported the

motion with pertinent authority. 8 C.F.R. § 1003.2(b)(1). Deciding whether Calle

met those requirements is not an inquiry upon which the BIA could “bring its

expertise to bear . . . evaluate the evidence . . . make an initial determination [and,

thereby] help a court later determine whether its decision exceeds the leeway that

the law provides.” Thomas, 547 U.S. at 186-87, 126 S. Ct. at 1615 (quoting

Ventura, 537 U.S. at 17, 123 S. Ct. at 353). It is rather an objective, procedural

inquiry: she either specified errors and supported them with pertinent authority, or

she did not. Thus, in these “rare circumstances,” we feel comfortable deciding the

issue left unresolved by the BIA in the first instance. 

In her motion to reconsider the BIA’s denial of her motion to reopen, Calle

argued that the evidence she submitted in support of her motion to reopen

established that there were changed country conditions that would put her life in

danger in Colombia. She also submitted translated copies of the consolation cards

and three news articles that described the FARC’s presence in Colombia. 

However, her arguments offered nothing more that reiteration of her assertions in

her motion to reopen. These were issues the BIA already had considered. 
13

Moreover, the consolation cards were not linked in any way to the FARC’s

presence in Colombia or its prosecution of Calle, nor did her three news articles

offer any further evidence than that already presented in Calle’s numerous articles

that she submitted in support of her motion to reopen. Accordingly, Calle did not

adequately specify errors of fact or law in the BIA’s denial of Calle’s motion to

reopen. See 8 C.F.R. § 1003.2(b)(1). 

Despite the BIA’s erroneous determination that Calle’s motion to reconsider

the BIA’s denial of her motion to reopen was numerically barred, we deny Calle’s

petition for review because her arguments in her motion to reconsider are

meritless. 

PETITION FOR REVIEW DENIED.