FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAR 20, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-15078

Non-Argument Calendar

________________________

Agency No. A79-509-122

NELSON VASQUEZ, 

DIANA CAROLINA RICAUTE VASQUEZ, 

JEFFERSON RICAUTE VASQUEZ, 

LUZ DARY RICAUTE-RODRIQUEZ, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(March 20, 2007)

Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
In 2002, President Bush signed into law the Homeland Security Act, which created a new

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Department of Homeland Security and abolished the INS, transferring its responsibilities to the new

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

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Nelson Vasquez, on behalf of himself, his wife Luz, and his children

Jefferson and Diana, petitions this court for review of the decision by the Board of

Immigration Appeals (“BIA”) denying his motion to reconsider its affirmance of

the Immigration Judge’s (“IJ’s”) order of removal and denial of: asylum,

withholding of removal, and relief under the United Nations Convention Against

Torture (“CAT”). For the reasons that follow, we affirm. 

I. Background

Vasquez, his wife, and his children, all natives and citizens of Colombia,

entered the United States in 2000 on immigrant visas, and they all remained

beyond their visas’ expiration periods. In July 2001, Vasquez filed an application

for asylum, withholding of removal, and protection under the CAT with the INS,1

alleging that he had been persecuted by the Revolutionary Armed Forces of

Colombia (“FARC”) based on his political opinion and his refusal to cooperate. 

An application pertaining to Vasquez’s wife and two children was filed in

November 2001, and this application was later consolidated with Vasquez’s

application. The INS referred the consolidated application to an IJ and issued

Notices to Appear to Vasquez and his family, charging them with removability

under 8 U.S.C. § 1227(a)(1)(B).
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At a hearing before the IJ, Vasquez and his family conceded removability. 

In a decision issued on January 31, 2005, the IJ denied relief, finding the asylum

application untimely and concluding that Vasquez’s testimony was not credible. 

The IJ further ruled that even if Vasquez were to be believed, his testimony did not

warrant the relief sought. On February 15, 2005, Vasquez submitted a notice of

appeal through his attorney, Lourdes Rodriguez. 

In November 2005, Vasquez replaced his attorney, Rodriguez, with David

Stoller. In that same month, Stoller filed a Notice of Entry of Appearance as

Attorney or Representative Before the BIA (Form EOIR-27), Rodriguez filed a

motion to withdraw, and Stoller filed a Freedom of Information Act (“FOIA”)

request seeking Vasquez’s file. On January 24, 2006, the BIA issued its briefing

schedule and sent it to Rodriguez, Vasquez’s then-former attorney, requiring

Vasquez to submit a brief by February 14, 2006. Stoller did not receive the BIA’s

response to his FOIA request until March 2006, at which time he noticed that the

Form EOIR-27 he had submitted in November 2005 was not in Vasquez’s file. 

After consulting with the BIA and Rodriguez, Stoller determined that the briefing

schedule had been sent to Rodriguez and that the briefing deadline had passed

without either Vasquez or the Government having filed a brief. As a result,

Vasquez motioned the BIA to accept his (now late) brief, and on April 10, 2006,

the BIA denied this motion. On May 4, 2006, Vasquez filed a motion to reset the
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briefing schedule, and in an order issued on May 24, 2006, the BIA denied the

motion on the grounds that neither party had presented sufficient reasons why it

should accept untimely briefs. In that same order, the BIA affirmed the IJ’s denial

of relief, explicitly agreeing with the IJ’s adverse credibility determination and

concluding that Vasquez failed to demonstrate changed or extraordinary

circumstances excusing the untimely filing of his asylum application. Vasquez did

not petition this court for review of the BIA’s May 24, 2006 decision.

On June 21, 2006, Vasquez motioned the BIA to reconsider its May 24,

2006 decision, arguing that, inter alia, the IJ erred in its conclusions, the BIA erred

in denying his motion to file an untimely brief, and he had new evidence to present

upon reconsideration. The BIA denied the motion, concluding that the motion

failed “to identify any particular errors of law or fact in [the BIA’s] previous

decision,” but, instead merely asserted that “rejection of [Vasquez’s] untimely brief

and affirmance of the [IJ’s] decision was incorrect.” The BIA also denied

Vasquez’s request to reopen the case due to new evidence on the grounds that

Vasquez had not submitted any new evidence as part of his motion. Vasquez now

petitions this court for review of the BIA’s June 21, 2006 decision.

II. Discussion

Vasquez argues that the BIA abused its discretion in denying his motion to

reconsider because he identified errors of law and fact in his motion, the BIA failed
 We do not address Vasquez’s due process argument because he failed to exhaust his

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administrative remedies by raising this issue before the BIA. Fernandez-Bernal v. U.S. Att’y Gen.,

257 F.3d 1304, 1317 n.13 (11th Cir. 2001). And because Vasquez does not challenge the BIA’s

denial of his motion to reopen based on new evidence, he has abandoned this issue as well.

Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 (11th Cir. 2005).

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to consider that Stoller had been retained as counsel and had timely filed Form

EOIR-27 with the BIA, and he has been denied due process by the BIA’s failure to

allow him to appeal the IJ’s denial of relief. 

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

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

“Our review 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).

Under 8 C.F.R. § 1003.2, a motion to reconsider a BIA decision must be

filed within thirty days of the decision and must “state the reasons for the motion

by specifying the errors of fact or law in the prior Board decision and shall be

supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1)-(2). 

Here, Vasquez’s motion failed to identify errors of fact or law, failed to cite

supporting authority, and failed to establish that the IJ erred in finding the asylum

application untimely or that his testimony was incredible. We therefore conclude

that the BIA did not abuse its discretion by denying Vasquez’s motion to
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reconsider.

III. Conclusion

For the foregoing reasons, we DENY Vasquez’s petition and AFFIRM the

BIA.