                    Case: 12-10245            Date Filed: 11/08/2012   Page: 1 of 5

                                                                          [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10245
                                        Non-Argument Calendar
                                      ________________________

                                           Agency No. A096-588-337




PA-SAIHOU BUBA GAYE,

llllllllllllllllllllllllllllllllllllllll                                              Petitioner,

                                                    versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                                              Respondent.

                                     ________________________

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

                                             (November 8, 2012)

Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

         Petitioner Pa-Saihou Buba Gaye seeks review of the Board of Immigration
              Case: 12-10245     Date Filed: 11/08/2012    Page: 2 of 5

Appeals’ (BIA’s) final order denying his motions to reconsider and reopen his

applications for withholding of removal under the Immigration and Nationality

Act (INA), adjustment of status, and relief under the United Nations Convention

Against Torture (CAT). After careful review, we deny the petition.

                                          I.

      Gaye, a native and citizen of The Gambia, was served with a Notice to

Appear in 2007 charging him with removability under 8 U.S.C. § 1227(a)(1)(C)(i),

as an alien who failed to maintain his nonimmigrant status, and 8 U.S.C.

§ 1227(a)(3)(D), as an alien who falsely represented himself as a U.S. citizen.

Gaye conceded removability but filed applications for withholding of removal

under the INA and relief under the CAT. He also sought to renew his adjustment-

of-status application, which Citizen and Immigration Services (CIS) had

previously denied. At a 2010 hearing where Gaye was the only witness, the

Immigration Judge (IJ) denied Gaye’s applications for withholding and CAT relief

and found him ineligible for adjustment of status.

      Gaye appealed the IJ’s decision to the BIA and, in support of his appeal,

included new affidavits from family members supporting his claims. The BIA

dismissed his appeal, noting that it could not consider new evidence on appeal.

      Instead of filing a petition for review in this court, Gaye filed a motion to

                                          2
                Case: 12-10245      Date Filed: 11/08/2012      Page: 3 of 5

reconsider and a motion to remand, which the BIA construed as a motion to

reopen. But he did not resubmit the new affidavits in support of his motion to

reopen. The BIA denied both motions. This is Gaye’s petition for review of the

denial of both motions.1

                                             II.

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

discretion. Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007). An

issue not raised in the initial brief on appeal is deemed waived, even if it was

raised in the notice of appeal. See Timson v. Sampson, 518 F.3d 870, 874 (11th

Cir. 2008). “Passing references to issues are insufficient to raise a claim for

appeal.” Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1145 (11th Cir. 2010).

       In his initial brief to this court, Gaye argues the underlying merits of his

withholding and adjustment-of-status claims and makes only passing references to

the denial of his motion to reconsider. Because Gaye does not offer any argument

as to why the BIA abused its discretion in denying his motion to reconsider, he has

abandoned the issue.

                                             III.


       1
        The majority of Gaye’s arguments concern the underlying merits of his withholding and
adjustment-of-status claims. Because he only appeals the BIA’s December 16, 2011 order
denying the motions to reconsider and reopen, we do not address the underlying claims.

                                              3
                Case: 12-10245   Date Filed: 11/08/2012    Page: 4 of 5

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

discretion. Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). “Our

review is limited to determining whether there has been an exercise of

administrative discretion and whether the matter of exercise has been arbitrary or

capricious.” Id. (internal quotation marks omitted). A motion to reopen “shall

state the new facts that will be proven at a hearing to be held if the motion is

granted” and “must be accompanied by . . . all supporting documentation.” 8

C.F.R. § 1003.2(c)(1). “A motion to reopen proceedings shall not be granted

unless it appears to the [BIA] that evidence sought to be offered is material and

was not available and could not have been discovered or presented at the former

hearing.” Id.

      The BIA did not abuse its discretion in denying Gaye’s motion to reopen.

Gaye did not explain to the BIA why the affidavits were previously unavailable to

him at the 2010 hearing, and the record, including Gaye’s testimony at the hearing,

supports the conclusion that they were available. Gaye now points to his aunt’s

affidavit, in which she stated that she did not testify at the 2010 hearing because

she “was not aware that [Gaye’s] story would not be believed by the [IJ].” The

BIA did not abuse its discretion by implicitly finding that this explanation did not

constitute unavailability. Further, although Gaye included the new affidavits with

                                          4
              Case: 12-10245     Date Filed: 11/08/2012   Page: 5 of 5

his original appeal to the BIA, he did not include them with his motion to reopen

as required by § 1003.2(c)(1).

      For the foregoing reasons, we deny Gaye’s petition.

      PETITION DENIED.




                                         5
