                                                             [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                               July 27, 2009
                            No. 08-15507                     THOMAS K. KAHN
                        Non-Argument Calendar                     CLERK
                      ________________________

                        Agency No. A097-949-547

ROBERTO LUIS ZAPATA-GOMEZ,
a.k.a. Juan Felipe Villa Hoyos,

                                                                     Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                      ________________________

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

                              (July 27, 2009)

Before BLACK, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
      Roberto Luis Zapata-Gomez, a native and citizen of Colombia proceeding

pro se, seeks our review of the Board of Immigration Appeals’ (“BIA”) final order

denying his motion to reconsider or reopen the denial of his earlier application for

asylum, withholding of removal, and relief under the Convention Against Torture.

In his petition for review, Zapata-Gomez argues that the BIA failed to sufficiently

articulate its reasons for denying his motion. He further argues that the BIA

abused its discretion when it denied his motion to the extent that he sought to

reopen his asylum proceeding. Both arguments fail. We address each in turn.

                                          I.

      Zapata-Gomez argues that the BIA failed to sufficiently articulate its reasons

for denying his motion. Procedurally, when the BIA has not made findings of fact

or has not applied the law to those facts, appellate courts should remand to allow

the BIA to make such determinations in the first instance. INS v. Ventura, 537

U.S. 12, 16, 123 S. Ct. 353, 355 (2002) (per curiam) (“[A] court of appeals should

remand a case to an agency for decision of a matter that statutes place primarily in

agency hands.”). Remanding a case is also appropriate when the BIA fails to give

“reasoned consideration” to all the evidence. Tan v. U.S. Att’y Gen., 446 F.3d

1369, 1375, 1377 (11th Cir. 2006) (citation omitted).

      Substantively, “[w]e review the BIA’s denial of a motion for reconsideration

for an abuse of discretion.” Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1286 (11th
                                          2
Cir. 2008) (per curiam) (citation omitted). “A motion to reconsider a decision

must be filed with the [BIA] within 30 days after the mailing of the [BIA] decision

. . . .” 8 C.F.R. § 1003.2(b)(2). The motion “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.” Id. at § 1003.2(b)(1).

      Here, the BIA explained that it denied Zapata-Gomez’s motion because the

motion was untimely. The BIA mailed its decision on May 21, 2008, but it did not

receive Zapata-Gomez’s motion until three days after the June 20, 2008 deadline

for filing a motion to reconsider. Because the motion was untimely, the BIA did

not abuse its discretion by denying reconsideration.

      Finally, to the extent that Zapata-Gomez’s motion includes a substantive

challenge to the denial of reconsideration, it is still meritless. Zapata-Gomez failed

to specify any errors of fact or law in the prior BIA decision. Thus, he has failed to

establish any substantive error in the BIA’s denial of reconsideration.

                                          II.

      Zapata-Gomez argues that the BIA abused its discretion by not granting his

motion to the extent that he sought to reopen his asylum proceeding and have new

evidence considered. “[W]e employ a very deferential abuse of discretion standard

in reviewing the BIA’s decision on a motion to reopen regardless of the underlying

basis of the alien’s request for relief.” Najjar v. Ashcroft, 257 F.3d 1262, 1302


                                           3
(11th Cir. 2001) (quotation marks and citation omitted). One independent ground

upon which the BIA may deny a motion to reopen is the “failure to introduce

evidence that was material and previously unavailable . . . .” Id.

      Here, Zapata-Gomez’s new evidence was previously available and not

material. The police investigation exhibit that he had submitted to the immigration

judge was not new. Zapata-Gomez also did not explain in his motion to the BIA

why he could not have previously obtained his other exhibits. He even admitted

that his new exhibits were “technically available earlier.” Thus, he fails to show

that the new evidence was previously unavailable.

      Zapata-Gomez also fails to show that the new evidence is material. Even

liberally construed, the evidence showed only that his uncle was possibly fatally

shot by an armed group. It did not connect the murder to FARC or otherwise help

establish that Zapata-Gomez suffered persecution on a protected ground.

Therefore, the BIA did not abuse its discretion by denying his request to reopen the

asylum proceedings and consider new evidence.

                                         III.

      Because we find no abuse of discretion in the BIA’s final order denying

Zapata-Gomez’s motion to reconsider or reopen, we deny his petition for review.

      PETITION DENIED.




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