Jose Cristobal Azuaje-Rengel v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12440
Non-Argument Calendar
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Agency No. A300-320-912
JOSE CRISTOBAL AZUAJE-RENGEL,
llllllllllllllllllllllllllllllllllllllllPetitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllllRespondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(January 17, 2013)
Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Jose Azuaje-Rengel, a native and citizen of Venezuela, petitions for review
of the Board of Immigration Appeals’s (“BIA”) denial of his motion to reconsider
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its dismissal of his appeal from the Immigration Judge’s (“IJ”) denial of his motion
for a continuance of his removal proceedings to await the adjudication of an
immediate relative I-130 petition filed on his behalf by his spouse.1 He also seeks
review of the BIA’s denial of his motion to reopen his removal proceedings.
We review the BIA’s denial of a motion to reconsider for an abuse of
discretion. Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007). A
motion to reconsider must specify the errors of law or fact in the prior BIA
decision and must be supported by pertinent authority. Calle, 504 F.3d at 1329
(citing 8 C.F.R. § 1003.2(b)(1)). A motion to reconsider that merely reiterates
arguments previously presented to the BIA does not specify errors of fact or law as
required for a successful motion to reconsider. Id.
Azuaje-Rengel argues that the BIA abused its discretion in denying his
motion to reconsider because the IJ granted him an unreasonably brief continuance
and insufficient time to file documents supporting the bona fides of his marriage.
Azuaje-Rengel’s assertion that the 8-day continuance was unreasonably short was
previously presented to the BIA in his brief on appeal, and, therefore, this assertion
merely reiterated an argument already raised to the BIA. See Calle, 504 F.3d at
1329. Additionally, Azuaje-Rengel’s argument that the IJ provided him only two
days to file new supporting documentation finds no support in the record, as the IJ
1 Azuaje-Rengel;s earlier I-130 petition was denied based on a marriage fraud finding.
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instructed Azuaje-Rengel to file the same documents that had already been
assembled and submitted with the I-130 petition. Accordingly, we cannot say that
the BIA abused its discretion in denying Azuaje-Rengel’s motion to reconsider.
We review the denial of a motion to reopen removal proceedings for an
abuse of discretion. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir.
2009). The BIA has the discretion to deny a motion to reopen for failing to
introduce evidence that was material and previously unavailable. Li v. U.S. Att’y
Gen., 488 F.3d 1371, 1374-75 (11th Cir. 2007); see also 8 C.F.R. § 1003.2(c)(1)
(stating that the BIA shall not grant a motion to reopen unless it appears that the
evidence that the petitioner seeks to offer is material and was not available and
could not have been discovered or presented at the former hearing). To show that
evidence is material, the petitioner “bears a heavy burden and must present
evidence that demonstrates that, if the proceedings were opened, the new evidence
would likely change the result in the case.” Jiang, 568 F.3d at 1256-57.
Azuaje-Rengel argues that the BIA abused its discretion in denying his
motion to reopen because it “improperly” viewed the evidence he presented with
the motion and incorrectly focused on the viability of the pending I-130 petition,
instead of considering his prima facie eligibility for adjustment of status.
However, the BIA based its denial of his motion on the ground that he had not met
his burden of showing that, if the proceedings were opened, the new evidence
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would likely change the result in the case. Insofar as Azuaje-Rengel failed to
present new evidence that would likely change the result in his case, he failed to
show that his new evidence was material, which provided the BIA an independent
reason to deny his motion to reopen. See Jiang, 568 F.3d at 1256-57; 8 C.F.R.
§ 1003.2(c)(1).
PETITION DENIED.
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