Case: 14-14604   Date Filed: 08/10/2015   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-14604
                        Non-Argument Calendar
                      ________________________

                       Agency No. A098-378-145



NODIRBEK NIGMATOVICH YUSUPOV,

                                                                      Petitioner,

                                 versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent,

                      ________________________

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

                            (August 10, 2015)



Before HULL, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
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       Nodirbek Nigmatovich Yusupov seeks review of the Board of Immigration

Appeals’ (BIA’s) denial of his emergency motion for a sua sponte order to reopen

his application for CAT protection. Yusupov asserts he was denied his Fifth

Amendment right to due process because the incorrect legal standard was applied

to his claim for protection under the United Nations Convention Against Torture

(CAT), and, accordingly, his original removal proceedings should be reopened or

reconsidered. After review, 1 we deny the petition.

       The BIA did not abuse its discretion in denying Yusupov’s motion. First to

the extent the motion could be construed as a motion to reconsider the Immigration

Judge’s (IJ’s) or BIA’s original decision (1) the motion was untimely; and

(2) Yusupov did not sufficiently show that his asserted eligibility for CAT relief

was based on facts and circumstances different than those that formed the basis of

his original claim, which the IJ found was not credible. 8 C.F.R. § 1003.2(b)(2)

(providing an alien may file one motion to reconsider any given BIA decision, and

it must be filed within 30 days of the mailing of the decision); Calle v. U.S. Att’y

Gen., 

, 1329 (11th Cir. 2007) (stating a motion to reconsider that

“merely republishes the reasons that had failed to convince the tribunal in the first

place gives the tribunal no reason to change its mind” (quotation omitted)). In

       1
          We review the BIA’s denial of motions to reopen and to reconsider for an abuse of
discretion. Chacku v. U.S. Att’y Gen., 

, 1286 (11th Cir. 2008). We review legal
determinations, including our own subject matter jurisdiction, de novo. Diallo v. U.S. Att’y Gen.,

, 1332 (11th Cir. 2010).
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addition, Yusupov could have raised the argument the incorrect legal standard was

applied by the IJ to address his CAT claim in an earlier motion. See Matter of O-

S-G-, 24 I. & N. Dec. 56, 58 (BIA 2006) (“A motion to reconsider based on a legal

argument that could have been raised earlier in the proceedings will be denied”).

      Next, to the extent the motion was construed as a motion to reopen, Yusupov

does not challenge the BIA’s determination his second motion to reopen was

untimely and number-barred, and, accordingly, he has abandoned these arguments

on appeal. See Carrizo v. U.S. Att’y Gen., 

, 1330 n.1 (11th Cir.

2011) (explaining issues not addressed in a party’s brief are deemed abandoned).

Moreover, although Yusupov presented new evidence related to current torture in

Uzbekistan in his second motion, the BIA did not abuse its discretion in finding

this evidence did not reflect materially changed circumstances different from those

he presented in his original CAT claim. See 8 U.S.C. § 1229a(c)(7) (providing the

numerical limitation and 90-day time limit on motions to reopen do not apply if the

motion to reopen is based on changed country conditions).

      Finally, based on our binding precedent, we lack jurisdiction to review the

BIA’s denial of Yusupov’s second motion to reopen or reconsider his original

removal proceedings based on its sua sponte authority. See Lenis v. U.S. Att’y

Gen., 

, 1294 (11th Cir. 2008) (holding we lack jurisdiction to review

the BIA’s decision whether to sua sponte reopen or reconsider a case in which the


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BIA has rendered a decision). In particular, Yusupov is not challenging the

constitutionality of the BIA’s decision not to exercise its sua sponte power, but

rather the constitutionality of the original removal proceeding, which we lack

jurisdiction to review.

      Accordingly, we deny the petition in part and dismiss in part.

      PETITION DENIED IN PART, DISMISSED IN PART.




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