Pa-Saihou Buba Gaye v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10245
Non-Argument Calendar
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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
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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
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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.
The majority of Gaye’s arguments concern the underlying merits of his withholding and1
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.
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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
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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.
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