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                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-10159
                            Non-Argument Calendar
                          ________________________

                            Agency No. A094-888-756



JOEDSON COSTA,

                                                                         Petitioner,

                                      versus

U.S. ATTORNEY GENERAL,

                                                                        Respondent.

                          ________________________

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

                                (August 25, 2014)

Before MARCUS, WILSON and FAY, Circuit Judges.

PER CURIAM:

      Joedson Costa, a native and citizen of Brazil, proceeds pro se and petitions

for review of the Board of Immigration Appeals’s (BIA) order denying his motion
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to reconsider its prior order affirming the Immigration Judge’s (IJ) denial of his

application for an adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i). On

appeal, Costa argues that the BIA erred by concluding that the first

labor-certification application filed on his behalf by his former employer, Arch

Company, Inc. (Arch), was not “approvable when filed” under 8 C.F.R.

§ 1245.10(a)(3) and that he was ineligible for an adjustment of status under INA §

245(i), 8 U.S.C. § 1255(i) as a “grandfathered” alien. Upon review of the record

and consideration of the parties’ briefs, we dismiss in part, and deny in part the

petition for review.

                                 I. BACKGROUND

      Costa entered the United States on June 9, 1999, as a non-immigrant visitor,

with authorization to remain until December 8, 1999. His visa was extended until

December 7, 2000. He remained in the United States beyond that date without

authorization. On April 30, 2001, Costa’s former employer, Arch, filed a labor-

certification application on his behalf with the U.S. Department of Labor (DOL).

In 2003, the attorney who filed that application, Javier Lopera, was convicted of

immigration fraud. Based on that conviction, the DOL issued a Notice of Findings

(NOF) in which it informed Arch that it was conducting an internal investigation

into the application in light of its discovery of Lopera’s fraud conviction and




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requested additional supporting evidence for the application. In response, Arch

withdrew the application.

      In 2004, another employer, Hurley Construction Company, Inc. (Hurley),

filed a second labor-certification application on Costa’s behalf. The DOL certified

that application. Hurley then filed a Form I-140 Immigration Petition for Alien

Worker Application on Costa’s behalf, which U.S. Citizenship and Immigration

Services (USCIS) approved.

      Subsequently, Costa filed a Form I-485 application for an adjustment of

status with USCIS pursuant to INA § 245(i), 8 U.S.C. § 1255(i). USCIS denied

Costa’s application because Costa had not maintained lawful status and had

engaged in employment without authorization. Further, Costa’s unlawful presence

and employment could not be waived under INA § 245(i) as requested because the

first labor-certification application filed on his behalf was ineligible for

“grandfathering” under 8 C.F.R. § 245.10(a)(1)(i) as it was not “approvable when

filed” under 8 C.F.R. § 1245.10(a)(3). The application had not been approvable

due to the fraud concerns regarding certification as noted in the DOL’s NOF,

including that Lopera had been convicted of separate acts of immigration fraud.

USCIS’s Administrative Appeals Office (AAO) affirmed the denial.

      On March 2, 2011, the Department of Homeland Security (DHS) issued

Costa a notice to appear (NTA), charging him as removable pursuant to INA §



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237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B) for remaining in the United States for

longer than permitted. At a master-calendar hearing, Costa admitted the

allegations contained in his NTA and the IJ sustained the charge of removability.

Costa indicated that he wished to renew his adjustment-of-status application.

      In a written brief in support of his adjustment-of-status application, Costa

argued that the first labor-certification application filed by Arch on his behalf was

“approvable when filed” under § 1245.10(a)(3). The evidence reflected that Arch

withdrew the application because the company had “lost interest” in pursuing

Costa’s certification after learning of Lopera’s immigration fraud.

Notwithstanding that fact that Arch later withdrew the application, it still remained

that the application had been properly filed, meritorious in fact, and non-frivolous

at the time of filing. When confronted with Arch’s unwillingness to pursue the

application, Costa immediately changed employers and continued the application

process through Hurley to preserve the first application’s 2001 priority date

through “grandfathering” under INA § 245(i). The documents submitted in

support of Arch’s labor-certification application would have been sufficient to

certify the application but for the fraud allegations against Lopera.

      At the merits hearing, the government argued that Costa had not met his

burden to demonstrate that he was eligible for an adjustment of status under INA §

245(i). The government submitted a complete copy of the DOL’s NOF related to



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the denial of Arch’s labor-certification application. The IJ inquired whether either

party had a copy of the first labor-certification application that Arch had filed on

Costa’s behalf. Both the government and Costa responded that they did not. The

IJ noted that it was Costa’s burden to demonstrate that the application was

approvable at the time of filing. Without a copy of the application, the IJ would be

unable to conduct the required analysis to determine if the application was

approvable when filed. After the IJ determined that Costa was not eligible to apply

for any other form of relief, Costa requested a voluntary departure, which the IJ

granted.

      In an oral decision, the IJ concluded that Costa was ineligible for an

adjustment of status pursuant to INA § 245(i), as he did not meet his burden to

establish that the first labor-certification application had been “approvable when

filed.” Costa had not produced a copy of the first labor-certification application,

and, thus, the IJ could not determine whether that application had been

“approvable when filed,” such that Costa was eligible for an adjustment of status

pursuant to INA § 245(i). Regardless of the approval of the 2004 labor-

certification application, Costa could not adjust his status unless he was eligible

under INA § 245(i). The IJ granted Costa’s request for a voluntary departure.

      Costa appealed the IJ’s decision to the BIA. In his appeal brief, Costa

argued that he had satisfied his burden of proving that the first labor-certification



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application filed on his behalf had been “approvable when filed” under §

1245.10(a)(3). The DOL had never stated that the application was fraudulent and

had denied that application only because Arch withdrew it. That application had

been properly filed, meritorious in fact, and non-frivolous because it was filed with

authentic documents by Arch. Because the DOL had issued a NOF that presumed

the first application to be fraudulent because it was filed by Lopera, the DOL

improperly found the application to be fraudulent based on guilt by association. In

denying Costa’s adjustment-of-status application, the IJ erroneously made the

same presumption of fraud as the DOL had.

      On October 23, 2013, the BIA dismissed Costa’s appeal, concluding that the

IJ had not erred by determining that he was ineligible for an adjustment of status

under INA § 245(i) because he had failed to meet his burden to establish that the

first labor-certification application was “approvable when filed.” Contrary to

Costa’s assertion, the IJ did not deny Costa’s adjustment-of-status application

based on fraud, but rather on Costa’s failure to meet his burden to establish that the

application had been “approvable when filed.” Costa failed to provide a copy of

the first labor-certification application and the letter from Arch attesting to the

company’s filing the application provided little additional support for the

application’s approvability at the time of filing. The BIA noted that, while not

dispositive, the attorney who had filed the first labor-certification application had



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been convicted of immigration fraud. The BIA reinstated the IJ’s grant of

voluntary departure.

      In November 2013, Costa moved for the BIA to reconsider its prior decision.

Costa contended that the BIA had overlooked relevant facts, namely, that the

second labor-certification application and Form I-140 filed by Hurley both had

been approved. Costa also argued that, because the fraud allegations against

Lopera arose after the time of filing the first labor-certification application, they

provided no basis for the BIA’s conclusion that the application had not been

“approvable when filed.”

      On December 23, 2013, the BIA denied Costa’s motion to reconsider,

concluding that he largely had raised the same or similar arguments as those raised

in his original appeal brief. Costa’s mere disagreement with the BIA’s prior

decision was an insufficient basis upon which to reconsider that decision. Further,

to the extent that Costa was attempting to raise new arguments related to the first

labor-certification application, those arguments were not properly before the BIA

on a motion to reconsider as they could have been raised in the original appeal.

Nevertheless, these arguments did not alter the BIA’s decision to deny Costa’s

request. Costa filed a Petition for Review with this Court on January 14, 2014

challenging the BIA’s December 23, 2013 decision.

                                    II. DISCUSSION



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

discretion.” Calle v. U.S. Att’y Gen., 

, 1328 (11th Cir. 2007). A

motion to reconsider must specify errors of fact or law in the BIA’s decision and

must be supported by pertinent authority. 

       On appeal, Costa raises the same arguments he has already raised twice

before the BIA.1 He asserts that the government erred by denying him adjustment

status; however, he does not argue any error on the part of the IJ or the BIA. The

only issue before us is whether the BIA abused its discretion in denying Costa’s

motion to reconsider for failure to identify material legal or factual error in the

October 23, 2013 decision. See 

(holding that “merely

reiterating arguments previously presented to the BIA does not constitute

‘specifying . . . errors of fact or law’ as required for a successful motion to

reconsider”); 8 U.S.C. § 1229a(c)(6)(C). Because Costa did not identify any errors

in the BIA’s decision, we affirm.

       PETITION DISMISSED IN PART, DENIED IN PART.




       1
          To the extent that Costa’s arguments on appeal are related to the BIA’s October 23,
2013 order affirming the IJ’s denial of his adjustment-of-status application, we will dismiss the
petition as to those issues for lack of jurisdiction. Costa’s petition was untimely filed on January
14, 2014, more than 30 days after entry of that order. See 8 U.S.C. § 1252(b)(1) (“The petition
for review must be filed not later than 30 days after the date of the final order of removal.”); Lin
v. U.S. Att’y Gen., 

, 1045 (11th Cir. 2012).


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