Assane Niang v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 9, 2018
• Docket: 17-15399
• Status: Unpublished

Opinion

Case: 17-15399 Date Filed: 07/09/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15399 Non-Argument Calendar ________________________

Agency No. A093-028-189

ASSANE NIANG,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(July 9, 2018)

Before TJOFLAT, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 17-15399 Date Filed: 07/09/2018 Page: 2 of 4

Assane Niang seeks review of the Board of Immigration Appeals’s (“BIA”)

November 7, 2017, order denying his motion for reconsideration of its April 17,

2017, decision affirming the Immigration Judge’s (“IJ”) denial of his application

for adjustment of status based on the IJ’s finding that Niang had made willful

misrepresentations regarding his prior arrests. Niang argues before this Court that

the BIA, in its April 17, 2017, order, failed to consider whether his statement was a

willful misrepresentation and failed to give any weight to his counsel’s statements,

which demonstrated that he did not understand the question during the interview.

He contends that he did not make a material misrepresentation regarding his prior

arrests.

We review de novo whether we have subject matter jurisdiction. Alvarado

v. U.S. Att’y Gen., 610 F.3d 1311, 1314 (11th Cir. 2010). A petitioner has 30 days

from the date of a final order to file his petition for review of that order, and this

deadline is “mandatory and jurisdictional.” INA § 242(b)(1), 8 U.S.C.

§ 1252(b)(1); Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005)

(per curiam) (quotation marks omitted). Consequently, the filing deadline for a

petition for review is not suspended or tolled by the filing of a motion to reopen or

reconsider. See Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1350-51 (11th Cir.

2005); Dakane, 399 F.3d at 1272 n.3.

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When appropriate, we will 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 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,” and “[t]herefore,

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.” Calle, 504 F.3d at 1329 (quoting C.F.R. § 1003.2(b)(1)).

When an appellant does not argue or only makes a passing reference to an

issue in his brief, the issue is abandoned. Lapaix v. U.S. Att’y Gen., 605 F.3d 1138,

1145 (11th Cir. 2010).

We lack jurisdiction to review the arguments raised in Niang’s brief because

although his petition for review states that he is seeking review of the BIA’s

November 2017 denial of his motion for reconsideration, his brief seeks review of

the BIA’s April 2017 decision. Because his petition was not filed within 30 days

of the BIA’s April 17, 2017, order, we lack jurisdiction over the petition to the

extent that he seeks review of that decision. INA § 242(b)(1), 8 U.S.C.

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§ 1252(b)(1); Dakane, 399 F.3d at 1272 n.3. Accordingly, we dismiss the portion

of the petition as to that BIA order.

As to the BIA’s November 2017 order, Niang fails to present any argument

as to how that decision is erroneous, and therefore has abandoned any challenge as

to that order. Lapaix, 605 F.3d at 1145. In any event, the BIA did not abuse its

discretion in denying the motion for reconsideration, because Niang merely

reiterated the arguments from his earlier appeal to the BIA, which fails to provide a

proper basis for reconsideration. Calle, 504 F.3d at 1328-29; 8 C.F.R.

§ 1003.2(b)(1). Accordingly, we deny the portion of the petition as to that BIA

order.

DISMISSED IN PART AND DENIED IN PART.