                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                                No. 10-13467                 ELEVENTH CIRCUIT
                            Non-Argument Calendar                JUNE 3, 2011
                          ________________________                JOHN LEY
                                                                   CLERK
                            Agency No. A095-732-688


YI-JEN CHEN,
a.k.a. Daniel Chen,

                                                          lllllllllllllllllllllPetitioner,

                                      versus

U.S. ATTORNEY GENERAL,

                                                       lllllllllllllllllllllRespondent.

                          ________________________

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

                                  (June 3, 2011)

Before WILSON, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:

      Yi-Jen Chen petitions for review of the BIA’s denial of his motions to
reconsider and to reopen his removal proceedings under the Immigration and

Nationality Act (“INA”) § 240(c)(6), (7), 8 U.S.C. § 1229a(c)(6), (7).

I.    Jurisdiction

      First, Chen argues that this Court has jurisdiction to review his petition

because his convictions for crimes involving moral turpitude were vacated on the

basis of legal defects in the underlying proceedings.

      We review our own subject matter jurisdiction de novo. Amaya-Artunduaga

v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We generally lack

jurisdiction to review a final order of removal for an alien who was found to be

inadmissible on account of a conviction for a crime involving moral turpitude. See

INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C); INA § 212(a)(2)(A)(i)(I), 8 U.S.C.

§ 1182(a)(2)(A)(i)(I). Nevertheless, we retain jurisdiction to address the threshold

issues of whether the petitioner is (1) an alien, (2) who is removable, (3) on

account of having committed a crime of moral turpitude. Keungne v. U.S. Att’y

Gen., 561 F.3d 1281, 1283 (11th Cir. 2009).

      A conviction vacated pursuant to a state rehabilitative measure still counts

as a “conviction” for purposes of removability. Resendiz-Alcaraz v. Ashcroft, 383

F.3d 1262, 1266-69 (11th Cir. 2004). “If, on the other hand, vacatur occurs

because there was a legal defect in the underlying proceeding (i.e., a violation of a

                                          2
constitutional or statutory right), then there is no longer a conviction for purposes

of the INA.” Alim v. Gonzales, 446 F.3d 1239, 1249-50 (11th Cir. 2006).

      The state court order granting Chen’s motion to withdraw his pleas and

vacating Chen’s convictions did not comment as to why the court issued the order.

However, Chen’s motion to withdraw his pleas made reference to his motion for

post-conviction relief, and in his motion for post-conviction relief, Chen alleged

that his pleas were invalid because, inter alia, (1) his Miranda1 rights were not

read to him in his native language, (2) his counsel failed to move for a suppression

of his confession, and (3) his waiver of rights at his plea was not knowing,

intelligent, and voluntary. Because Chen’s motion to withdraw his pleas

referenced his motion for post-conviction relief, and his motion for post-

conviction relief alleged legal defects in the proceedings underlying his

convictions, we can determine that Chen’s convictions were vacated on the basis

of the alleged defects. Thus, Chen no longer has convictions for crimes involving

moral turpitude. Accordingly, we find that we have jurisdiction to review the

BIA’s denial of Chen’s motions to reconsider and to reopen.

II.   Denial of Motions to Reconsider and to Reopen

      Chen argues that the BIA abused its discretion in denying his motions to

      1
          Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
                                          3
reconsider and to reopen because the evidence showed that his convictions were

vacated on the basis of legal defects and not for rehabilitative purposes.

      We review the BIA’s denial of motions to reopen and to reconsider for an

abuse of discretion. Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir.

2007) (motion to reconsider); Mohamed Ali Abdi v. U.S. Att’y Gen., 430 F.3d

1148, 1149 (11th Cir. 2005) (motion to reopen). Our review “is limited to

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

whether the [manner] of exercise has been arbitrary and capricious.’” Mohamed

Ali Abdi, 430 F.3d at 1149 (citation omitted).

      An alien is permitted to file one motion to reconsider and one motion to

reopen. 8 U.S.C. § 1229a(c)(6)(A), 7(A). A motion to reconsider must “specify

the errors of law or fact in the previous order and shall be supported by pertinent

authority.” Id. § 1229a(c)(6)(C). A motion to reconsider that merely restates the

arguments that the BIA previously rejected provides no reason for the BIA to

change its prior decision. Calle, 504 F.3d at 1329. A motion to reconsider will be

denied if it is based on legal arguments that could have been made in an earlier

proceeding. In re O-S-G, 24 I&N Dec. 56, 58 (BIA 2006). In addition, “[a]

motion to reconsider contests the correctness of the original decision based on the

previous factual record, as opposed to a motion to reopen, which seeks a new

                                          4
hearing based on new or previously unavailable evidence.” Id. at 57-58.

       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). “A motion to reopen

proceedings shall not be granted unless 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). This

regulation is “framed negatively” and “does not affirmatively require the Board to

reopen the proceedings under any particular condition.” Al Najjar v. Ashcroft, 257

F.3d 1262, 1301 (11th Cir. 2001) (quotation and citation omitted). With a motion

to reopen, the movant carries the burden. See Ali v. U.S. Att’y Gen., 443 F.3d 804,

813 (11th Cir. 2006) (stating that movant’s burden is a heavy one).

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

reconsider. Chen failed to show, as he must in a motion to reconsider, that the

BIA made any specific error of law or fact based on the record before it in the

initial appeal.

       In his motion to reopen, Chen presented additional evidence that his

convictions were vacated on the basis of legal defects and not for rehabilitative

purposes. However, the BIA did not abuse its discretion in denying Chen’s

                                          5
motion to reopen because Chen failed to show that the evidence was not available

and could not have been discovered or presented at the initial appeal.

      Upon review of the record and the parties’ briefs, we deny Chen’s petition

for review.

      PETITION DENIED.2




      2
              Chen’s request for oral argument is denied.

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