                                                                [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                  FILED
                                                           U.S. COURT OF APPEALS
                                No. 08-13576                 ELEVENTH CIRCUIT
                                                             FEBRUARY 13, 2009
                            Non-Argument Calendar
                                                              THOMAS K. KAHN
                          ________________________
                                                                   CLERK

                            Agency No. A97-949-805

FERMIN ALFONSO DUQUE,
a.k.a. Oscar David Valencia Forero,

                                                                        Petitioner,

                                      versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.


                          ________________________

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

                               (February 13, 2009)

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Fermin Alonso Duque (“Duque”) petitions for review of the Board of

Immigration Appeals’ (“BIA”) order denying his motion to reconsider its previous

decision. The BIA had dismissed his appeal from a decision of the Immigration

Judge (“IJ”) denying Duque’s asylum and withholding of removal claims. Duque

presents two arguments. First, he contends that the BIA abused its discretion in

denying his motion to reconsider. Second, he argues that the BIA erred in failing

to reopen the proceedings or reconsider its decision sua sponte. We find Duque’s

first argument unavailing and lack jurisdiction to consider his second.

Accordingly, we DENY the petition in part and DISMISS it in part.

                                I. BACKGROUND

      Duque, a native and citizen of Colombia, arrived in the United States on or

about 16 February 2004. Administrative Record (“AR”) at 223. The Immigration

and Naturalization Service (“INS”) served Duque with a Notice to Appear

(“NTA”), charging that Duque was removable as an alien who sought to procure a

visa by fraud or willful misrepresentation of a material fact pursuant to INA §

212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), and as an alien who was not in

possession of a valid entry document pursuant to INA § 212(a)(7)(A)(i)(I), 8

U.S.C. § 1182(a)(7)(A)(i)(I). Id. Duque appeared before the IJ and conceded the

charges of removability. Id. at 64. He subsequently filed an application for

asylum, withholding of removal, and relief under the United Nations Convention
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Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

(“CAT”). Id. at 185-94.

      At the asylum hearing, Duque testified that he last lived in Cali, Colombia,

along with his wife, children, parents, and siblings. Id. at 78-80. In Colombia,

Duque, his cousin, and his brother-in-law all worked for a community action board

which assisted local youth. Id. at 80-83. Duque was a fiscal examiner for the

organization. Id. at 82-83. In late August 2003, he received several threats from

the National Liberation Army (“ELN”).1 Id. at 83. The ELN claimed that they

were going to kill him and his family if he did not ally himself with the group and

requested that he sell off his house and other property and give the proceeds to the

ELN. Id. at 83-84, 88. The threats were communicated via letters, none of which

Duque was able to produce. According to Duque, his cousin and brother-in-law

both were murdered in Colombia, ostensibly at the hands of the ELN. Id. at 84-85,

87-88. As of the date of the asylum hearing, no other members of Duque’s family

had been harmed by the ELN because they moved to another location in Colombia

away from the Cali community. Id. at 91.

      On 7 April 2006, the IJ denied Duque’s requests for asylum, withholding of

removal, and CAT relief and ordered Duque removed to Colombia. Id. at 44. The

      1
          In Spanish, Ejército de Liberación Nacional.


                                                 3
IJ found that Duque was the victim of a crime rather than persecution on account

of a protected ground, as the ELN appeared more interested in extorting money

from him than in discouraging his efforts on behalf of local youth. Id. at 51. To

that end, the IJ found that there was no linkage between his activities on behalf of

the youth and the extortion attempt by the ELN. Id. The IJ also noted that (1)

Duque’s family remained in Colombia unharmed, albeit by moving to a different

neighborhood; (2) other members of the community action board did not

experience threats or harm; and (3) Duque did not attempt to relocate within

Colombia prior to entering the United States. Id. at 51-52. The IJ ultimately

concluded that Duque had not established a credible fear of persecution if returned

to Colombia. Id. at 52-53.

      On 28 April 2006, Duque appealed the IJ’s decision to the BIA. Id. at 37-

39. In his appeal, he contended that the IJ erred in finding that he did not belong to

a protected group and in finding that he could relocate within Colombia. Id. at 38.

Duque relied, in part, on the U.S. State Department’s Colombia Country Report on

Human Rights Practices for 2002 which reported that opposition paramilitary

groups in Colombia were responsible for numerous political killings and

disappearances. Id. at 28. Duque further argued that the IJ erred by (1) ignoring

evidence of persecution on account of his socio-political beliefs and confusing it

with common criminal activity; (2) denying the nexus between his plight and his
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political opinion; and (3) assigning greater weight to the demand for money than to

the murders of Duque’s associates on the community action board and the clearly

political nature of his activities. Id. at 29-30.

       The BIA dismissed the appeal and agreed with the IJ’s findings that Duque

failed to meet his burden of proof for asylum, that Duque was the victim of

criminal activity rather than persecution, and that the ELN was more interested in

extorting money from Duque than in discouraging his socio-political activities. Id.

at 13-14. The BIA also affirmed the IJ’s finding that Duque could have reasonably

avoided a threat of future persecution by relocating within Colombia, and that the

reasonableness of his fear of persecution was reduced by the fact that his family

remained unharmed in Colombia after his departure. Id. at 14. Moreover, the BIA

affirmed the IJ’s finding that Duque had not established past persecution or a well-

founded fear of future persecution because he had not shown that ELN’s extortion

efforts were related to Duque’s political activities. Id. Finally, the BIA noted that

because Duque had not challenged the IJ’s denial of his request for CAT relief, that

issue would not be addressed on appeal. Id. at 13 n.1.

       Duque then filed a motion to reconsider the denial of his appeal with the

BIA. Id. at 8-11. He took issue with the BIA’s determination that he could

reasonably avoid a threat of future persecution by relocating within Colombia and

reiterated his argument that he was a victim, not of extortion, but of persecution
                                             5
based on his political activities. Id. at 2-3. On 30 May 2008, the BIA denied

Duque’s motion to reconsider. Id. at 2. The BIA found Duque’s claim that ELN’s

request for money was a form of punishment for his political activities to be

speculative and not supported by the evidence, and that the amount of money

demanded did not bring Duque within the ambit of a protected ground. Id.

Moreover, the BIA observed that Duque “largely attempts to reiterate arguments

already made in connection with his appeal and already evaluated and rejected by

[the BIA].” Id. Duque now appeals the BIA’s determination to us.

                                  II. DISCUSSION

      We review the denial of a motion to reconsider for abuse of discretion. See

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 to reconsider that merely restates the

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

change its prior decision. See Calle, 504 F.3d at 1329. “Therefore, 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.” Id. (quoting 8 C.F.R. § 1003.2(b)(1)).



                                            6
       In this case, Duque’s motion to reconsider effectively mirrors his argument

on appeal to the BIA. He offers no new pertinent authority in support of his

allegations of error and advances the same arguments already considered and duly

rejected.2 Accordingly, we conclude that the BIA did not abuse its discretion in

denying the motion to reconsider.

       To the extent that Duque argues that the BIA failed to reopen or reconsider

the proceedings pursuant to its sua sponte authority, see 8 C.F.R. § 1003.2(a), his

failure to raise this issue on appeal to the BIA precludes our review. See

Camacho-Salinas v. U.S. Att’y Gen., 460 F.3d 1343, 1346 n.1 (11th Cir. 2006)

(per curiam) (observing that we lack jurisdiction to consider claims not exhausted

before the BIA). In any event, we would lack jurisdiction to review the BIA’s

decision not to reopen a proceeding sua sponte because that decision is “committed

to agency discretion by law.” Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1294 (11th

Cir. 2008).




       2
          In his motion to reconsider, Duque cites two cases from our circuit but misapplies their
respective holdings. See Arboleda v. U.S. Att’y Gen., 434 F.3d 1220, 1226 (11th Cir. 2006) (per
curiam) (requiring BIA to conduct “reasonableness determination” when considering whether
petitioner could relocate to Colombia); Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231-32
(11th Cir. 2005) (per curiam) (concluding that petitioner did not demonstrate a well-founded fear
of future persecution on account of a protected ground). We also note that although Duque
refers in his motion to reconsider to a portion of the U.S. State Department’s Colombia Country
Report on Human Rights Practices for 2002, the report itself is conspicuously absent from the
record.
                                                  7
                                III. CONCLUSION

      Duque petitions for review of the BIA’s order denying his motion to

reconsider. We conclude that the BIA did not abuse its discretion in denying his

motion to reconsider and we lack jurisdiction to consider whether the BIA erred in

failing to reopen the proceedings or reconsider its decision sua sponte.

Accordingly, we DENY the petition in part and DISMISS it in part.

      PETITION DENIED, in part, and DISMISSED, in part.




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