                                                            [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________          FILED
                                              U.S. COURT OF APPEALS
                           No. 09-15823         ELEVENTH CIRCUIT
                                                SEPTEMBER 7, 2010
                       Non-Argument Calendar
                                                     JOHN LEY
                     ________________________
                                                      CLERK

                       Agency No. A096-292-480


MAHENDRA SUGIARTO,

                                                                    Petitioner,

                                 versus

U.S. ATTORNEY GENERAL,

                                                                  Respondent.


                     ________________________

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

                          (September 7, 2010)

Before EDMONDSON, BLACK, and PRYOR, Circuit Judges.


PER CURIAM:
      Mahendra Sugiarto, a native and citizen of Indonesia proceeding pro se,

petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his

motion for reconsideration. The BIA previously had dismissed Sugiarto’s appeal

of the immigration judge’s (“IJ”) decision denying him asylum, withholding of

removal, and relief under the U.N. Convention Against Torture (“CAT”). No

reversible error has been shown; we dismiss the petition in part and deny it in part.

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

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

Appellate review of the denial of discretionary relief “is limited to determining

whether there has been an exercise of administrative discretion and whether the

[manner] of exercise has been arbitrary or capricious.” See Garcia-Mir v. Smith,

766 F.2d 1478, 1490 (11th Cir. 1985) (internal quotation omitted) (in the context

of a motion to reopen). A motion to reconsider shall specify “the errors of fact or

law” in the previous order and “shall be supported by pertinent authority.” 8

C.F.R. § 1003.2(b)(1).

      Sugiarto originally sought asylum based on his Christian religion and the

persecution he suffered at the hands of extremist Muslim groups in Indonesia. But

later, Sugiarto filed an amended asylum application alleging that he suffered




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persecution in Indonesia because he was a homosexual.* The IJ concluded that

Sugiarto’s asylum application was time-barred and frivolous. The IJ also

concluded that Sugiarto was not credible and failed to meet the substantive burden

for asylum, and thus, failed to meet the higher burden of proof required for

withholding of removal and CAT relief. The BIA agreed with the IJ’s frivolity and

untimeliness determinations and also concluded that, substantively, Sugiarto made

no claim for relief because of “the absence of credible testimony in support of his

claim.”

       In his motion to reconsider, Sugiarto argued that the BIA applied incorrect

legal standards because the dismissal of his asylum claim as frivolous and time-

barred provided insufficient reasons for dismissing his claims for withholding of

removal and CAT relief. Sugiarto also argued that the adverse credibility

determination was unsupported and that the BIA failed to address his claim about

belonging to a particular social group that was subject to a pattern or practice of

persecution in Indonesia. The BIA denied reconsideration, concluding that it




       *
        About his first asylum proceeding, the IJ ordered Sugiarto removed after he failed to
appear at his asylum hearing. But later, Sugiarto obtained counsel and counsel moved to reopen
his removal proceedings because Sugiarto had received ineffective assistance from the Chinese-
Indonesian American Society in preparing his application. The IJ granted Sugiarto’s motion and
reopened his removal proceedings.

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applied the correct legal standards, properly considered Sugiarto’s claims, and that

no clear error existed in the IJ’s adverse credibility determination.

      On appeal, Sugiarto challenges determinations from the BIA’s original

removal order, including that his asylum application was frivolous and that he was

not credible. But, as the government argues, we lack jurisdiction over these claims

because Sugiarto did not file a timely petition for review of the BIA’s final

decision of removal. See 8 U.S.C. § 1252(b)(1) (a petition for review from a final

order of removal “must be filed not later than 30 days after the date of the final

order of removal”); Jaggernauth v. U.S. Attorney Gen., 432 F.3d 1346, 1350-51

(11th Cir. 2005) (the filing of a motion to reconsider does not affect the finality of

the underlying order). So, we dismiss the petition for review on these claims.

      Sugiarto also repeats his argument that the BIA incorrectly denied him

withholding of removal and CAT relief because his asylum claim was time-barred

and frivolous. But Sugiarto misinterprets the BIA’s decision: the BIA made a

separate merits determination -- independent of the frivolity and untimeliness

findings -- that Sugiarto did not meet his burden of proof for withholding of

removal and CAT relief. Because the BIA concluded that Sugiarto’s claims were

not credible and he did not meet his burden of proof, it was unnecessary for the

BIA to analyze whether he belonged to a particular social group.



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      The BIA abused no discretion in denying Sugiarto’s motion to reconsider

because Sugiarto failed to allege sufficient errors of fact or law to support his

motion.

      PETITION DISMISSED IN PART, DENIED IN PART.




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