             Case: 13-12146    Date Filed: 12/17/2013   Page: 1 of 14


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 13-12146
                             Non-Argument Calendar
                           ________________________

                            Agency No. A075-550-462


RENE JARITZ,

                                                                         Petitioner,

                                      versus

U.S. ATTORNEY GENERAL,

                                                                        Respondent.

                          ________________________

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

                               (December 17, 2013)

Before HULL, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

      Rene Jaritz, proceeding pro se, seeks review of the Board of Immigration

Appeals’s (“BIA”) denial of his motion to reconsider its decision affirming the
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Immigration Judge’s (“IJ”) denial of Jaritz’s request for voluntary departure. Jaritz

does not challenge his removability or the denial of his application for cancellation

of removal, but appeals only the denial of his request for voluntary departure.

After careful review, we deny the petition.

                            I. BACKGROUND FACTS

A.    1988 Entry and 2001 Commencement of Removal Proceeding

      On September 7, 1988, Jaritz, a native and citizen of Austria, entered the

United States as a non-immigrant visitor with authorization to remain for

approximately six months until March 28, 1989. Eleven years later Jaritz was still

here. On August 29, 2001, Jaritz was issued a Notice to Appear (“NTA”),

charging him as removable pursuant to Immigration and Nationality Act (“INA”)

§ 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for remaining in the United States longer

than permitted.

      At a master calendar hearing held on August 22, 2002, Jaritz, through

counsel, admitted the factual allegations in the NTA and conceded removability.

Jaritz indicated that he was married to a U.S. citizen, Jeanette Jaritz (“Jeanette”),

who had filed an I-130 visa petition on his behalf, but had later withdrawn the

petition.

B.    Application for Cancellation of Removal



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       On October 21, 2002, Jaritz filed an application for cancellation of removal,

indicating that his “removal would result in exceptional and extremely unusual

hardship” to his wife Jeanette. On February 5, 2003, Jaritz and Jeanette divorced.

       On March 21, 2003, Jaritz attempted to marry Christine Jaritz (“Christine”),

who was also a U.S. citizen like his previous wife, Jeanette. Two weeks after the

attempted marriage, on March 26, 2003, Christine signed an I-130 visa petition on

Jaritz’s behalf, and in April 2003, Christine filed the petition. Christine and Jaritz

later determined that their marriage was invalid because Christine had not divorced

her previous husband. In 2004, after Christine divorced her previous husband, she

and Jaritz remarried.

       The IJ continued the case multiple times to await the adjudication of the

April 2003 I-130 visa petition. At a February 9, 2006 master calendar hearing,

Jaritz indicated that the April 2003 I-130 visa petition was still pending and that he

wished to proceed on his October 21, 2002 cancellation of removal application.

       On March 2, 2007, the April 2003 I-130 visa petition was denied or

withdrawn.1 No removal proceedings relevant to Jaritz’s petition for review

occurred until March 12, 2008.

C.     March 12, 2008 Merits Hearing


       1
        It is unclear from the administrative record whether the petition was denied or whether
Christine withdrew the April 2003 I-130 visa petition voluntarily.

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       On March 12, 2008, the IJ conducted a merits hearing on Jaritz’s

cancellation of removal application. Jaritz and Christine testified in support of his

cancellation of removal application. On cross-examination of Christine, the

government introduced handwritten, signed statements, made during a March 2,

2007 interview concerning the April 2003 I-130 visa petition Christine had filed on

Jaritz’s behalf. The statements provided that: (1) Christine married Jaritz to obtain

a car and a free place to live; (2) the marriage was never consummated; and (3) the

marriage was done to evade the immigration laws. At the hearing, Christine

testified that she “felt like [she] was coerced into writing [the statements]” and that

she loved her husband.

       The IJ continued the hearing to allow the government to lodge an additional

charge of removability based on marriage fraud. 2

D.     September 14, 2010 Continued Merits Hearing

       At a September 14, 2010 merits hearing,3 Jaritz’s counsel conceded that

Jaritz was unable to show the requisite hardship for cancellation of removal and

requested a voluntary departure order. A request for voluntary departure at the

       2
          On October 8, 2008, the government lodged an additional charge of removability,
charging Jaritz as removable pursuant to INA § 237(a)(1)(G)(ii), 8 U.S.C. § 1227(a)(1)(G)(ii),
for failing to fulfill a marital agreement, which, in the opinion of the Attorney General, was
entered into for the purpose of procuring Jaritz’s admission as an immigrant. The government
later withdrew the § 1227(a)(1)(G)(ii) charge of removability.
       3
        No hearings were held between the October 8, 2008 hearing and the September 14, 2010
hearing. The delay between the two proceedings was due, in part, to the government’s request to
continue an August 26, 2009 hearing because it did not have Jaritz’s file.
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conclusion of immigration proceedings requires an alien to show good moral

character for at least the five years preceding the request. INA § 240B(b)(1)(B), 8

U.S.C. § 1229c(b)(1)(B). The government opposed Jaritz’s request for voluntary

departure, arguing that he could not establish the requisite good moral character.

      The IJ then noted too that, to qualify for an order of voluntary departure “at

the conclusion of proceedings,” Jaritz had the burden of showing that, among other

things, he had been a person of good moral character for the past five years.

      Jaritz then testified in support of his voluntary departure request. In

response, the government presented the testimony of a U.S. Citizenship and

Immigration Services (“USCIS”) officer, who had questioned Jaritz and Christine

during the March 2, 2007 interview concerning the April 2003 I-130 visa petition.

The USCIS officer testified that, at the interview, Christine stated that: (1) she had

married Jaritz so that he could obtain his green card; and (2) she was given a free

place to live and a car for helping Jaritz.

      After the USCIS officer’s testimony, the IJ found that Jaritz’s counsel’s

earlier concession that Jaritz was unable to prove the requisite hardship for

cancellation of removal amounted to a withdrawal of his cancellation of removal

application. As a result, the IJ asked if the sole form of relief requested was

voluntary departure. In response, Jaritz’s counsel stated that Jaritz was not

withdrawing the application for cancellation of removal, but was simply stating

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that Jaritz “may not be able to show that his wife will suffer extreme and unusual

hardship.” Immediately prior to the IJ issuing his oral decision, the IJ stated that,

“because [Jaritz’s attorney] decided not to withdraw the application for

cancellation, it needs to be signed before the Court.” The IJ then had Jaritz sign

the application for cancellation of removal.

E.    IJ’s Decision

      At the conclusion of the September 14, 2010 hearing, the IJ issued an oral

decision, stating that, because Jaritz had not presented any evidence that his

removal would result in exceptional and extremely unusual hardship to his U.S.

citizen spouse, the IJ “would pretermit” Jaritz’s cancellation of removal

application. However, at the very end of the oral decision, the IJ stated that Jaritz’s

application for cancellation of removal was “denied.”

      As to Jaritz’s request for voluntary departure, the IJ noted that, “[a]t the

conclusion of proceedings,” an alien was eligible for voluntary departure if he met

certain statutory requirements, including establishing his good moral character for

the five years immediately preceding the date of the application for voluntary

departure. Based on the testimonial and documentary evidence presented by the

government, the IJ found that Jaritz had married Christine for the purpose of

evading immigration laws. Because Jaritz had entered into a marriage for the

purpose of obtaining an immigration benefit, the IJ found that Jaritz was not a

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person of good moral character. Based on this finding, the IJ denied Jaritz’s

voluntary departure request.

F.     BIA Appeal

       On October 28, 2010, Jaritz, through counsel, filed a notice of appeal,

asserting that the IJ erred in denying Jaritz’s request for voluntary departure. In his

counseled appeal brief, Jaritz argued that he had requested pre-conclusion

voluntary departure under INA § 240B(a), 8 U.S.C. § 1229c(a), as opposed to post-

conclusion voluntary departure under INA § 240B(b), 8 U.S.C. § 1229c(b), and

thus, his eligibility for voluntary departure was not dependent on the establishment

of his good moral character. In his counseled brief, Jaritz also argued that, even if

his request was considered as a post-conclusion voluntary departure request, the IJ

erred in denying his request because the IJ failed to weigh Jaritz’s positive and

adverse factors to determine whether he was entitled to voluntary departure as a

matter of discretion.

       On January 25, 2013, 4 the BIA dismissed Jaritz’s appeal. The BIA rejected

Jaritz’s argument that he requested pre-conclusion voluntary departure because

Jaritz never withdrew his cancellation of removal application, despite having

numerous opportunities to do so. The BIA then affirmed the IJ’s determination


       4
        By February 15, 2011, Jaritz had filed his appellate brief and the government had filed a
response. Nothing in the record explains the almost two-year gap between those appellate
documents being filed and the BIA’s dismissal of Jaritz’s appeal on January 25, 2013.
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that Jaritz failed to show the requisite good moral character for post-conclusion

voluntary departure.

G.    Motion to Reconsider BIA’s Dismissal of Appeal

      On February 15, 2013, Jaritz, through counsel, moved the BIA to reconsider

its decision to dismiss his appeal. Jaritz asserted that: (1) the BIA erred in

concluding that he had not withdrawn his cancellation of removal application and

thus could not apply for pre-conclusion voluntary departure; and (2) the IJ made no

factual finding as to whether Jaritz was requesting pre- or post-conclusion

voluntary departure, and thus, the BIA erred in finding that Jaritz had requested

post-conclusion voluntary departure and in not remanding the case back to the IJ to

make the necessary factual finding. Finally, Jaritz argued that the IJ and BIA erred

in applying the legal standards for determining whether to grant voluntary

departure as a matter of discretion by failing to consider and weigh all of the

relevant favorable and unfavorable factors.

H.    BIA’s Denial of Motion to Reconsider

      On April 15, 2013, the BIA denied Jaritz’s motion to reconsider. The BIA

concluded that, because Jaritz declined to withdraw his cancellation of removal

application, the BIA’s prior rejection of Jaritz’s assertion that he had requested pre-

conclusion voluntary departure was not erroneous. The BIA rejected Jaritz’s

argument that it had engaged in impermissible factfinding in determining that he

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had requested post-conclusion voluntary departure. The BIA concluded that it was

clear from the IJ’s decision that the IJ had treated Jaritz’s voluntary departure

request as a request for post-conclusion voluntary departure, and thus, it was

unnecessary to remand the case to the IJ to determine whether Jaritz’s request was

for pre- or post-conclusion voluntary departure. The BIA noted that Jaritz’s

argument that the BIA had applied an incorrect legal standard in denying his

voluntary departure request was the same argument that he made in his direct

appeal, and the BIA declined to revisit the issue. The BIA concluded that it was

not persuaded by any of Jaritz’s alleged “errors of law or fact,” as required for a

successful motion to reconsider, and denied Jaritz’s motion.

      On May 13, 2013, Jaritz filed a petition for review in this Court.

                                 II. DISCUSSION

A.    Jurisdiction over January 25, 2013 BIA Decision

      We review de novo our own subject matter jurisdiction. Martinez v. U.S.

Att’y Gen., 446 F.3d 1219, 1221 (11th Cir. 2006). A petition for review must be

filed with this Court no later than 30 days after the BIA’s final order of removal.

INA § 242(b)(1), 8 U.S.C. § 1252(b)(1). The statutory time limit for filing a

petition for review in an immigration proceeding is “mandatory and jurisdictional”

and “not subject to equitable tolling.” Dakane v. U.S. Att’y Gen., 399 F.3d 1269,

1272 n.3 (11th Cir. 2005) (internal quotation marks omitted). Thus, the filing

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deadline for a petition for review is not suspended or tolled by the filing of a

motion to reconsider. See id.

      Because Jaritz did not file his petition for review until May 13, 2013, his

petition as to the BIA’s January 25, 2013 decision to dismiss his appeal of the IJ’s

decision is untimely. See INA § 242(b)(1), 8 U.S.C. § 1252(b)(1). Thus, to the

extent that Jaritz seeks to challenge the BIA’s January 25, 2013 decision, we do

not have jurisdiction to review his challenge. See Dakane, 399 F.3d at 1272 n.3.

Thus, we dismiss Jaritz’s petition for review as to this issue.

B.    Jurisdiction over April 15, 2013 BIA Denial of Motion to Reconsider

      We retain jurisdiction over Jaritz’s claims related to the BIA’s denial of his

motion to reconsider because these claims raise questions of law. See Alvarado v.

U.S. Att’y Gen., 610 F.3d 1311, 1314 (11th Cir. 2010); INA § 242(a)(2)(D), 8

U.S.C. § 1252(a)(2)(D). Both pre-conclusion and post-conclusion voluntary

departures are discretionary forms of relief. See Arguelles-Campos, 22 I. & N.

Dec. 811, 817 (BIA 1999). Although we lack jurisdiction to review a discretionary

decision denying voluntary departure, we retain jurisdiction to review the non-

discretionary legal determination as to an alien’s statutory eligibility for voluntary




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departure. Alvarado, 610 F.3d at 1314; INA §§ 240B(f), 242(a)(2)(D), 8 U.S.C.

§§ 1229c(f), 1252(a)(2)(D). 5

C.      Merits of Jaritz’s Motion to Reconsider

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

discretion. Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1252 (11th Cir. 2008). To

the extent that the BIA’s decision was based on a legal determination, our review is

de novo. Id.

       In the course of deciding an appeal, the BIA “will not engage in

factfinding.” 8 C.F.R. § 1003.1(d)(3)(iv). If additional factfinding is needed in a

particular case, the BIA may remand the proceeding to the IJ. Id.

       A motion to reconsider “shall specify the errors of law or fact in the previous

order and shall be supported by pertinent authority.” INA § 240(c)(6)(C), 8 U.S.C.

§ 1229a(c)(6)(C). “[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.” Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1329 (11th Cir. 2007) (internal

quotation marks and alteration omitted). Consequently, a motion to reconsider that

       5
         INA § 240B(f), 8 U.S.C. § 1229c(f) provides that “[n]o court shall have jurisdiction over
an appeal from denial of a request for an order of [post-conclusion] voluntary departure.”
However, this provision does not limit our jurisdiction to review constitutional claims or
questions of law concerning the denial of a request for post-conclusion voluntary departure
because INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D) provides that “[n]othing in subparagraph
(B) or (C), or in any other provision of this chapter (other than this section) which limits or
eliminates judicial review, shall be construed as precluding review of constitutional claims or
questions of law raised upon a petition for review.”

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merely reiterates arguments previously presented to the BIA does not specify

errors of facts or law as required for a successful motion to reconsider. Id.

       Voluntary departure permits an alien charged with removability to depart

the United States voluntarily at his own expense. See Alvarado, 610 F.3d at 1314.

“The immigration laws distinguish between a grant of voluntary departure at two

different stages of removal proceedings.” Id.

      “Pre-conclusion voluntary departure” allows an IJ to enter an order granting

voluntary departure “prior to the completion of such proceedings.” INA

§ 240B(a)(1), 8 U.S.C. § 1229c(a)(1). Pre-conclusion voluntary departure may be

granted only if the alien: (1) makes the request for voluntary departure “prior to or

at the master calendar hearing at which the case is initially calendared for a merits

hearing”; (2) “[m]akes no additional requests for relief (or if such requests have

been made, such requests are withdrawn prior to any grant of voluntary departure .

. . )”; (3) “[c]oncedes removability”; (4) “[w]aives appeal [to the BIA] of all

issues”; and (5) is not deportable as an aggravated felon or for engaging in terrorist

activities. Id.; 8 C.F.R. § 1240.26(b)(1)(i).

      “Post-conclusion voluntary departure” may be granted if the IJ finds that the

alien, among other things, “is, and has been, a person of good moral character for




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at least 5 years immediately preceding the alien’s application for voluntary

departure.” 6 INA § 240B(b)(1)(B), 8 U.S.C. § 1229c(b)(1)(B).

       The BIA did not abuse its discretion in denying Jaritz’s motion to reconsider

its prior decision affirming the IJ’s denial of post-conclusion voluntary departure.

At the September 14, 2010 hearing, Jaritz never requested pre-conclusion

voluntary departure. While Jaritz conceded to the IJ on multiple occasions that he

could not establish that he was statutorily eligible for cancellation of removal, he

specifically declined to withdraw his cancellation of removal application. Because

he failed to withdraw his cancellation of removal application, the IJ and BIA

properly considered Jaritz’s request as a request for post-conclusion voluntary

departure. See INA § 240B(a)(1) 8 U.S.C. § 1229c(a)(1); 8 C.F.R.

§ 1240.26(b)(1)(i)(B). 7

       Likewise, the BIA did not engage in impermissible factfinding. While the IJ

never explicitly stated that Jaritz’s voluntary departure request was for post-

conclusion voluntary departure pursuant to § 1229c(b)(1), it is clear from Jaritz’s

       6
         Other eligibility requirements for post-conclusion voluntary departure include: (1)
physical presence in the United States for a period of at least one year preceding service of the
NTA; (2) a finding that the respondent is not deportable as an aggravated felon or for engaging
in activities related to national security; and (3) a showing that the respondent has the means to
depart the United States and intends to do so. INA § 240B(b)(1), 8 U.S.C. § 1229c(b)(1); 8
C.F.R. § 1240.26(c)(1).
       7
         Although the IJ and BIA did not discuss the timeliness of Jaritz’s request for voluntary
departure, we note that pre-conclusion voluntary departure requests must be made prior to or at
the master calendar hearing where the case is initially scheduled for a merits hearing, and Jaritz
did not comply with this requirement. 8 C.F.R. § 1240.26(b)(1)(i)(A).
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immigration proceedings and the IJ’s decision that the IJ found that Jaritz had

applied for post-conclusion voluntary departure. While the IJ did not note at the

hearing or cite in his oral decision the statutory provision under which Jaritz was

seeking voluntary departure, the IJ clearly stated multiple times that, to be eligible

for voluntary departure “at the conclusion of proceedings,” Jaritz had to meet

certain requirements. And, the requirements that the IJ applied (including good

moral character) are applicable to post-conclusion voluntary departure, not pre-

conclusion voluntary departure. See INA § 240B(a)(1), (b)(1), 8 U.S.C.

§ 1229c(a)(1), (b)(1).

      Because the immigration proceedings and the IJ’s decision make clear that

the IJ found that Jaritz applied for post-conclusion voluntary departure, the BIA, in

denying Jaritz’s motion to reconsider, properly concluded that it did not engage in

impermissible factfinding in deciding Jaritz’s appeal. Moreover, to the extent that

Jaritz reiterated the same arguments in his motion to reconsider that he raised in his

direct appeal, the BIA did not abuse its discretion in denying his motion to

reconsider. See Calle, 504 F.3d at 1329. Accordingly, we deny Jaritz’s petition as

to these issues.

      For all of the foregoing reasons, we dismiss in part and deny in part Jaritz’s

petition.

      PETITION DISMISSED IN PART, DENIED IN PART.

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