           Case: 11-10708   Date Filed: 08/14/2012   Page: 1 of 4

                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 11-10708
                        Non-Argument Calendar
                      ________________________

                        Agency No. A096-082-435


ANTONIO SEGUNDO OLIVEROS,



                                                                    Petitioner,


                                  versus


U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

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

                            (August 14, 2012)

Before TJOFLAT, ANDERSON and EDMONDSON, Circuit Judges.

PER CURIAM:
              Case: 11-10708    Date Filed: 08/14/2012   Page: 2 of 4

      Antonio Segundo Oliveros, a native and citizen of Venezuela, seeks review

of the Board of Immigration Appeals’ (“BIA”) denial of his December 2010

motion to reopen removal proceedings after it concluded that it did not have

jurisdiction to consider the motion pursuant to 8 C.F.R. § 1003.2(d) - the

regulatory post-departure bar. Pursuant to a removal order, Oliveros was removed

from the United States in January 2007. Later that year, he illegally reentered the

United States. Oliveros now argues that: (1) the BIA abused its discretion in

denying his motion to reopen due to a lack of jurisdiction because the regulatory

post-departure bar improperly contracts the BIA’s statutory jurisdiction to

consider motions to reopen and contravenes the Immigration and Nationality Act

(“INA”); and (2) the BIA’s denial of his motion to reopen violated the 1951

United Nations Convention Relating to the Status of Refugees (“UN

Convention”), and the 1967 United Nations Protocol Relating to the Status of

Refugees (“UN Protocol”).

                       I. Regulatory Post-Departure Bar

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

discretion, and any underlying legal determinations de novo. Li v. U.S. Att’y Gen.,

488 F.3d 1371, 1374 (11th Cir. 2007). Review of the denial of a motion to reopen

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

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discretion and whether that exercise was arbitrary or capricious. Ali v. U.S. Att’y

Gen., 443 F.3d 804, 808 (11th Cir. 2006).

      If an alien reenters the United States illegally after having been removed

pursuant to a removal order, the removal order is reinstated from its original date

and is not subject to being reopened. INA § 241(a)(5), 8 U.S.C. § 1231(a)(5)1; See

De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1279-81 (11th Cir. 2006). In De

Sandoval, we noted that § 1231(a)(5) applies to all aliens who reenter illegally. Id.

at 1279. We upheld the Attorney General’s authority in promulgating 8 C.F.R. §

241.8, which provides that an alien who reenters illegally has no right to a hearing

before an immigration judge and delegates the determination of removability to an

immigration officer. Id. at 1280-81.

      Because the INA and its interpreting regulations deprives the BIA of

authority to reopen removal proceedings where an alien has illegally reentered the

United States after being removed under a removal order, the BIA’s conclusion


1
      Section 1231(a)(5) provides:

      Reinstatement of removal orders against aliens illegally reentering

      If the Attorney General finds that an alien has reentered the United States illegally
      after having been removed or having departed voluntarily, under an order of removal,
      the prior order of removal is reinstated from its original date and is not subject to
      being reopened or reviewed, the alien is not eligible and may not apply for any relief
      under this chapter, and the alien shall be removed under the prior order at any time
      after the reentry.

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that it lacked jurisdiction to consider Oliveros’ motion to reopen was mandated by

statute. Accordingly, its denial of Oliveros’ motion to reopen did not improperly

contract its statutorily conferred jurisdiction to consider motions to reopen or

contravene the INA, and it did not abuse its discretion when it denied the motion.

We, therefore, deny this claim.

                       II. UN Convention and UN Protocol

      We review our subject matter jurisdiction de novo. Amaya-Artunduaga v.

U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We do not have

jurisdiction to consider any claims that an alien has not first presented to the BIA.

Id. Because Oliveros failed to raise his UN Convention and UN Protocol claim

before the BIA, we do not have jurisdiction to consider it. Accordingly, we

dismiss this claim.

      After careful and thorough review of the administrative record and the

parties’ briefs, we deny Oliveros’ petition for review in part, and dismiss it in part.

      PETITION DENIED, IN PART, AND DISMISSED IN PART.




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