                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                     FILED
                          ________________________          U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                   May 2, 2008
                                No. 07-13523                    THOMAS K. KAHN
                            Non-Argument Calendar                   CLERK
                          ________________________

                             BIA No. A97-635-389

CIRA ELENA CASTELLANO MORAN,

                                                                        Petitioner,

                                      versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.


                          ________________________

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

                                  (May 2, 2008)

Before TJOFLAT, BLACK and CARNES, Circuit Judges.

PER CURIAM:

      Cira Elena Castellano Moran, a native and citizen of Venezuela, petitions for

review of the decision of the Board of Immigration Appeals denying her motions
to reconsider and reopen its earlier decision, which affirmed the Immigration

Judge’s removal order.

       Castellano was admitted to the United States in 2002. After she received a

Notice to Appear charging her with removability in October 2003, she filed an

application for asylum, withholding of removal, and relief under the United

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

Treatment or Punishment. Castellano’s application claimed that on account of her

political opinion she had suffered past persecution at the hands of the Bolivarian

Circles, a group supporting Venezuelan president Hugo Chavez, and the

Directorate of Intelligence and Prevention Services.

       After a hearing, the IJ denied Castellano’s asylum and withholding of

removal claims, concluding that any harm that she suffered did not rise to the level

of persecution and that she had failed to prove a well-founded fear of future

persecution. The IJ also determined that Castellano had not established that she

had been tortured in Venezuela and, therefore, denied her claim for relief under the

CAT.

       Castellano appealed to the BIA, arguing that she had established both that

she suffered past persecution and that she had a well-founded fear of future

persecution on account of her political opinion. She further contended that she had

proved she was tortured by the government of Venezuela. On March 13, 2006 the
                                          2
BIA affirmed the IJ’s decision without opinion.

      On April 10, 2006 Castellano filed a motion to reconsider with the BIA. She

included with that motion an article reporting that the Chavez government in

Venezuela has no tolerance for dissent and that citizens have been beaten, killed,

imprisoned, and tortured for protesting.

      The BIA denied Castellano’s motion for reconsideration, concluding that she

had failed to identify any error of fact or law in its previous decision. Instead, the

BIA noted, Castellano had reiterated the arguments she had made on appeal, which

it had already considered and rejected. Because she submitted new evidence with

her motion, however, the BIA also treated Castellano’s motion as a motion to

reopen. The BIA concluded that the article submitted by Castellano contained

information that was merely cumulative of information that she had previously

submitted, which also indicated that there were significant political tensions

between the Venezuelan government and its opposition. The BIA, therefore,

denied the motion to reopen as well. On August 1, 2007 Castellano petitioned this

Court for review of the BIA’s denial of her motion to reconsider.

                                           I.

      Castellano first contends that the IJ erred in finding that she is not a refugee

and that she did not establish that she suffered past persecution or has a well-

founded fear of future persecution on account of her political opinion. She also
                                           3
contends that the BIA erred in affirming the IJ’s decision.

      This Court reviews de novo whether it has subject matter jurisdiction. Arias

v. U.S. Att’y Gen., 482 F.3d 1281, 1283 (11th Cir. 2007). An alien seeking review

of an order of removal must file a petition for review within 30 days of the date of

the final order of removal. 8 U.S.C. § 1252(b)(1). An order of removal becomes

final upon the dismissal of an appeal by the BIA. See 8 C.F.R. § 1241.1(a).

“[T]he statutory limit for filing a petition for review in an immigration proceeding

is ‘mandatory and jurisdictional, [and] it is not subject to equitable tolling.’”

Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005) (quoting

Stone v. INS, 514 U.S. 386, 405, 115 S. Ct. 1537, 1549 (1995)). The finality of an

order of removal, moreover, is not affected by the filing of a motion to reconsider.

Stone, 514 U.S. at 405, 115 S. Ct. at 1549.

      We cannot consider the merits of Castellano’s arguments attacking the final

order of removal because we lack jurisdiction to do so. The order became final on

March 13, 2006 when the BIA affirmed the IJ’s decision. See 8 C.F.R. §

1241.1(a). Although Castellano filed a motion to reconsider with the BIA on April

10, 2006, that filing did not change the date that the order of removal became final.

See Stone, 514 U.S. at 405, 115 S. Ct. at 1549. She did not file her petition for

review with this Court until August 1, 2007, over one year after the BIA affirmed

the IJ’s decision. Because she failed to file a petition for review within 30 days of
                                            4
the date of the final order of removal, as required by 8 U.S.C. § 1252(b)(1), this

Court does not have jurisdiction to address the merits of Castellano’s claims about

that order. Our jurisdiction is limited to reviewing the BIA’s denial of the motion

for reconsideration.

                                          II.

      Castellano contends that the BIA erred by concluding that the new

information she submitted with her motion to reconsider was cumulative. She also

argues that the BIA erred in denying her motion for reconsideration because she

presented sufficient evidence to support a finding of past persecution and future

persecution on account of her political opinion.

      This Court reviews the BIA’s denial of a motion for reconsideration and a

motion to reopen only for an abuse of discretion. Assa’ad v. U.S. Att’y Gen., 332

F.3d 1321, 1341 (11th Cir. 2003) (relating to a motion for reconsideration);

Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1340 (11th Cir. 2003) (relating to a

motion to reopen). Because they are discretionary forms of relief, judicial review

of denials of motions for reconsideration and to reopen are “limited to determining

‘whether there has been an exercise of administrative discretion and whether the

matter of exercise has been arbitrary or capricious.’” See Garcia-Mir v. Smith, 766

F.2d 1478, 1490 (11th Cir. 1985) (citation omitted) (relating to a motion to

reopen); see also Assa’ad, 332 F.3d at 1340–41 (noting that motions to reconsider
                                          5
are within the discretion of the BIA).

      In a motion for reconsideration, an alien must “specify the errors of law or

fact in the previous order” and must support the motion with “pertinent authority.”

8 U.S.C. § 1229a(c)(6)(A) & (C); see also 8 C.F.R. § 1003.2(b)(1). This Court has

noted that “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 v. U.S. Att’y Gen., 504 F.3d 1324, 1329 (11th Cir. 2007)

(citation omitted) (omission in original). Thus, “[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.” Id. (internal quotation marks and citation

omitted) (alteration in original).

      A motion to reopen must “state the new facts that will be proven at a hearing

to be held if the motion is granted, and shall be supported by affidavits or other

evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B); see also 8 C.F.R. § 1003.2(c)(1).

The motion will be granted only if “it appears to the Board that evidence sought to

be offered is material and was not available and could not have been discovered or

presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). An alien making a

motion to reopen “bears a ‘heavy burden,’ and must ‘present[] evidence of such a

nature that the [BIA] is satisfied that if proceedings before the [IJ] were reopened,

with all attendant delays, the new evidence offered would likely change the result
                                            6
in the case.’” Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006) (citation

omitted) (alterations in original).

      The BIA did not abuse its discretion in denying Castellano’s motion for

reconsideration. In her motion, she argued primarily that she had established that

she suffered past persecution because of her involvement with the Democratic

Action Political Party of Venezuela, that she had a well-founded fear of future

persecution based on her past persecution, that she cannot safely relocate to

another town or city, and that she cannot obtain protection from the government of

Venezuela. Those arguments, however, merely reiterated ones that she made in her

initial appeal, which the BIA had already considered and rejected. The BIA did

not err in denying her motion for reconsideration. See 8 U.S.C. § 1229a(c)(6)(A)

& (C); see also Calle, 504 F.3d at 1330–31 (rejecting an alien’s motion to

reconsider because the motion “offered nothing more than reiteration of her

assertions in her motion to reopen”).

      Nor did the BIA abuse its discretion by construing Castellano’s motion as a

motion to reopen and denying it. Her motion failed to state any new material facts

that warranted reopening her case. The article that she submitted with her motion

was not material because the information in it was cumulative of that she had

already submitted. The article alleged that the Chavez government in Venezuela

violates human rights on a regular basis and does not tolerate disagreement with it.
                                          7
Both the IJ and the BIA, however, had already considered numerous articles

submitted by Castellano to the same effect. As a result, the additional article

submitted in connection with the motion to reopen does not establish that if the

proceedings were reopened, “the new evidence offered would likely change the

result in the case.” See Ali, 443 F.3d at 813. Accordingly, the BIA did not abuse

its discretion in denying her motion to reopen.

                                         III.

      In conclusion, we lack jurisdiction to review the petition insofar as it

challenges the final order of removal and therefore DISMISS the petition in part.

We DENY the petition for review insofar as it challenges the BIA’s denial of

Castellano’s motion to reconsider and reopen.




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