            Case: 15-10876   Date Filed: 10/26/2015   Page: 1 of 8


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10876
                         Non-Argument Calendar
                       ________________________

                        Agency No. A099-048-433



ESTHER TWUM,

                                                                       Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

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

                             (October 26, 2015)

Before TJOFLAT, HULL, and WILSON, Circuit Judges.

PER CURIAM:
                Case: 15-10876   Date Filed: 10/26/2015   Page: 2 of 8


       Esther Twum appeals the Board of Immigration Appeals’ (“BIA”) order

denying her motion to reconsider its prior decision, which dismissed her appeal of

an Immigration Judge’s (“IJ”) order denying her application for adjustment of

status and ordering her removed from the United States. After review, we deny the

petition for review.

                                 I. BACKGROUND

A.     Notice of Removal

       On September 14, 2009, the United States Department of Homeland

Security issued Twum a Notice to Appear (“NTA”). The NTA alleged that Twum,

who had previously been admitted to the United States as a nonimmigrant K-1 on

December 10, 2006, for a period not to exceed March 10, 2007, had remained in

the United States beyond that date without authorization from the Citizenship and

Immigration Service. The NTA further alleged that Twum had not been granted an

adjustment of status, which would allow her to remain in the United States, and

thus charged her as subject to removal under Section 237(a)(1)(B) of the

Immigration and Nationality Act (“INA”). On October 13, 2011, Twum admitted

the NTA’s allegations and conceded her removability, but requested an adjustment

of status as relief.

B.     Adjustment of Status Hearing Before IJ




                                         2
              Case: 15-10876     Date Filed: 10/26/2015    Page: 3 of 8


      On October 29, 2012, Twum was given an adjustment of status hearing

before an IJ. At the hearing, the IJ considered arguments as to whether Twum’s

previously failed attempts to have her status adjusted through I-130 and I-485

petitions were properly dismissed. The IJ also reviewed prior findings by

immigration officers as to whether Twum’s marriage to United States citizen

Willey Smiley was bona fide, which is required for adjustment of status. Matter of

Sesay, 25 I. & N. Dec. 431, 440 (BIA 2011).

      Later that day, the IJ issued an oral decision denying Twum’s adjustment of

status request and ordering her removed. The IJ concluded that Twum had failed

to establish the bona fides of her marriage to Smiley that would warrant adjustment

of status, stating that Twum had “not shown that this was a viable marriage for

other than immigration purposes.” In support of that conclusion, in addition to

highlighting various discrepancies between Twum’s and Smiley’s testimony with

respect to prior adjustment of status petitions, the IJ noted that Twum had failed to

present documents that would establish the bona fides of Twum’s marriage under

the REAL ID Act or show reasonable cause why they were not presented, such as

evidence of joint property or joint taxes or other such items.

C.    Appeal to BIA

      On November 26, 2012, Twum filed a Notice of Appeal asking the BIA to

review the IJ’s decision. In her appeal brief, Twum explained why she believed


                                          3
                  Case: 15-10876       Date Filed: 10/26/2015      Page: 4 of 8


she had met the requirements for adjustment of status under INA § 245, but did not

address the IJ’s findings with respect to the REAL ID Act’s requirements for

establishing a bona fide marriage.

      On October 24, 2014, the BIA issued a decision affirming the IJ’s decision

and ordering that Twum’s appeal be dismissed. The BIA “agree[d] with the

Immigration Judge that [Twum] failed to adequately establish the bona fides of her

marriage.” Citing the REAL ID Act, the BIA noted that Twum had failed to

provide tax or insurance documents or other such evidence that would establish a

bona fide marriage and that she provided no explanation for the absence of such

evidence.

D.    Motion to Reconsider

      On November 24, 2014, Twum filed a motion to reconsider with the BIA

asking it to reconsider her appeal of the IJ’s decision. 1 In her appeal brief, Twum

reiterated arguments from her prior brief as to why her marriage should be

considered to have been bona fide, and Twum made new arguments not made in

her prior brief that the immigration officer had erroneously adjudicated her prior

I-130 petition and that the IJ lacked jurisdiction to reconsider her adjustment of

status request. However, Twum did not challenge the BIA’s application of the

REAL ID Act and its findings regarding Twum’s failure to present documentary


      1
          Twum did not file a petition of review of the BIA’s October 24, 2014 decision.
                                                 4
                 Case: 15-10876    Date Filed: 10/26/2015      Page: 5 of 8


evidence that would establish the bona fides of her marriage or an explanation for

their absence.

       On January 29, 2015, the BIA denied Twum’s motion to reconsider

explaining that Twum had “not identified any material error of fact or law in [its]

prior decision.” It stated that Twum’s brief had reargued issues previously

presented and raised new issues not previously presented. On February 27, 2015,

Twum filed a petition for review from the BIA’s January 29, 2015 decision.

                                   II. DISCUSSION

       A petition for review must be filed with the court of appeals no later than 30

days after the BIA’s final order of removal. INA § 242(b)(1), 8 U.S.C.

§ 1252(b)(1). The statutory time limit for filing a petition for review in an

immigration proceeding is mandatory and jurisdictional and is not subject to

equitable tolling. Lin v. U.S. Att’y Gen., 677 F.3d 1043, 1045 (11th Cir. 2012). 2

A motion filed with the BIA to reopen or reconsider the removal order does not toll

the time for filing a petition for review with this Court. See Dakane v. U.S. Att’y

Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005).

       A motion to reconsider “shall specify the errors of law or fact in the previous

order and shall be supported by pertinent authority.” INA § 240(c)(6)(C), 8 U.S.C.

§ 1229a(c)(6)(C). “[A] motion that merely republishes the reasons that had failed

       2
        We review de novo our own subject matter jurisdiction. Gonzalez-Oropeza v. U.S.
Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003).
                                             5
                Case: 15-10876       Date Filed: 10/26/2015       Page: 6 of 8


to convince the tribunal in the first place gives the tribunal no reason to change its

mind.” Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1329 (11th Cir. 2007) (quotation

omitted). Therefore, a motion to reconsider that merely reiterates arguments

previously presented to the BIA does not specify errors of fact or law as required

for a successful motion to reconsider. Id. (quoting 8 C.F.R. § 1003.2(b)(1)).

Additionally, a motion to reconsider based on a legal argument that could have

been raised earlier in the proceedings will be denied. Matter of O-S-G-, 24 I. & N.

Dec. 56, 58 (BIA 2006). 3

       To the extent Twum’s petition should be construed as a challenge to the

BIA’s initial decision dismissing her appeal of the IJ’s denial of her application for

adjustment of status and order of removal, we must dismiss her appeal for lack of

jurisdiction. The BIA dismissed Twum’s appeal on October 24, 2014. Twum’s

motion to reconsider did not toll the time to petition for review from that order.

See Dakane, 399 F.3d at 1272 n.3. Accordingly, to timely petition for this Court’s

review of the BIA’s October 24, 2014 order, Twum would have needed to file a

petition for review by November 23, 2014, which she did not do. INA § 242(b)(1),

8 U.S.C. § 1252(b)(1). The petition that Twum filed was not filed until February

27, 2015, and only referred to the BIA’s January 29, 2015 denial of her motion to



       3
         We review the BIA’s denial of a motion to reconsider for abuse of discretion. Calle, 504
F.3d at 1328.
                                               6
                 Case: 15-10876   Date Filed: 10/26/2015   Page: 7 of 8


reconsider. Therefore, our review is limited to the BIA’s denial of Twum’s motion

to reconsider.

      As to her motion to reconsider, Twum failed to identify any errors of fact or

law in the BIA’s initial order dismissing her appeal from the IJ’s decision. In that

order, the BIA agreed with the IJ that Twum had failed to adequately establish the

bona fides of her marriage to Smiley and consequently failed to meet the requisites

for adjustment of status. The BIA based its decision in part on application of the

REAL ID Act and Twum’s failure to establish the bona fides of her marriage

consistent with that act. As a result, the BIA affirmed the IJ’s decision and

dismissed her appeal.

      In moving the BIA to reconsider its October 24, 2014 order, Twum needed

to specify the errors of law or fact in the previous order drawing support by

pertinent authority. INA § 240(c)(6)(C), 8 U.S.C. § 1229a(c)(6)(C). But Twum

did neither. Instead, Twum reiterated her bona fides arguments regarding her

marriage that she had made previously, and she made new arguments regarding

alleged errors in a prior I-130 petition adjudication and the IJ’s alleged lack of

jurisdiction. As we explain above, such arguments do not specify relevant errors

of fact or law sufficient for purposes of a motion to reconsider. And notably,

Twum failed to challenge the BIA’s application of the REAL ID Act in support of

its decision. Twum points to no authority showing either that the BIA erred by


                                           7
              Case: 15-10876    Date Filed: 10/26/2015   Page: 8 of 8


basing its decision to uphold the IJ’s decision in part on application of the READ

ID Act’s requirements or that it erred by misapplying its requirements. As a result,

we cannot say that the BIA rested its October 24, 2014 decision on insufficient

grounds. Therefore, we cannot say that the BIA abused its discretion in denying

Twum’s motion to reconsider.

      PETITION DENIED.




                                         8
