USCA11 Case: 23-10043 Document: 36-1 Date Filed: 07/09/2024 Page: 1 of 6

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 23-10043 Non-Argument Calendar ____________________ MARTHA PATRICIA URIBE URIBE, Petitioner, versus U.S. ATTORNEY GENERAL,

Respondent.

____________________ Petitions for Review of a Decision of the Board of Immigration Appeals Agency No. A074-669-571 ____________________ USCA11 Case: 23-10043 Document: 36-1 Date Filed: 07/09/2024 Page: 2 of 6

2 Opinion of the Court 23-10043

____________________ No. 23-13267 Non-Argument Calendar ____________________ MARTHA PATRICIA URIBE URIBE, Petitioner, versus U.S. ATTORNEY GENERAL,

Respondent.

____________________ Petitions for Review of a Decision of the Board of Immigration Appeals Agency No. A074-669-571 ____________________ Before LUCK, BRASHER, and ABUDU, Circuit Judges.

PER CURIAM: Martha Patricia Uribe Uribe petitions for review of the Board of Immigration Appeals’s denial of her motion to reopen USCA11 Case: 23-10043 Document: 36-1 Date Filed: 07/09/2024 Page: 3 of 6

23-10043 Opinion of the Court 3 her immigration proceedings. Finding no abuse of discretion, we deny the petition.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY Uribe Uribe is a Mexican native and citizen. She entered the United States without inspection in 1994 and filed an application for asylum in 1996. After failing to attend any further proceedings, the immigration judge ordered her deported in 1997.

Years later, in 2017, Uribe Uribe, who was represented by counsel, filed a motion to reopen her immigration proceedings, ar- guing that she never received notice of the prior proceedings. The immigration judge reopened the proceedings on different grounds—changed circumstances arising after the deportation or- der. After reopening, Uribe Uribe pursued termination of the de- portation order and renewed her application for asylum. Following a merits hearing, the immigration judge found that there was in- sufficient evidence to terminate the deportation order, there was insufficient evidence in support of Uribe Uribe’s asylum applica- tion, and ordered her deported to Mexico.

Through new appellate counsel, Uribe Uribe appealed this decision to the board. The board affirmed the immigration judge’s decision and dismissed her appeal. Uribe Uribe then moved the board to reconsider its decision. Two months later, she moved to reopen the proceedings on the basis that her counsel before the im- migration judge was ineffective. The board denied both motions.

As to her motion to reopen, the board noted that she met the pro- cedural requirements for an ineffective assistance of counsel claim USCA11 Case: 23-10043 Document: 36-1 Date Filed: 07/09/2024 Page: 4 of 6

4 Opinion of the Court 23-10043 but denied her motion because she failed to show that she could not have presented the claim in her first appeal to the board.

In her petition here, Uribe Uribe only seeks review of the board’s denial of her motion to reopen, expressly waiving her peti- tions to review the board’s dismissal of her first appeal and its de- nial of her motion to reconsider.

STANDARD OF REVIEW Unless the board expressly adopts an immigration judge’s opinion, we review only the board’s decision. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). We review the board’s denial of a motion to reopen immigration proceedings for an abuse of discretion. Id. “This review is limited to determining whether the [board] exercised its discretion in an arbitrary or capricious manner.” Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). To do so, the petitioner “bears a heavy burden as motions to reopen are disfavored.” Id. (citation omitted).

DISCUSSION In her motion to reopen, Uribe Uribe argued—for the first time—that her trial counsel was ineffective. Finding no new facts that could not have been presented earlier, the board denied the motion. Uribe Uribe now argues the denial was an abuse of the board’s discretion. We disagree.

A petitioner may file one motion to reopen immigration proceedings following a final administrative order. 8 U.S.C. § 1229a(c)(7). The motion must provide “new facts” supported by documentary evidence. Id. § 1229a(c)(7)(B). That is, a motion to USCA11 Case: 23-10043 Document: 36-1 Date Filed: 07/09/2024 Page: 5 of 6

23-10043 Opinion of the Court 5 reopen will be denied unless the petitioner provides material evi- dence that “was not available and could not have been discovered or presented” earlier. 8 C.F.R. § 1003.2(c)(1). In other words, be- cause new facts are required, the board has discretion to “deny a motion to reopen even if the party moving has made out a prima facie case for relief.” See id. § 1003.2(a).

The board properly exercised this discretion here. Uribe Uribe moved to reopen her immigration proceedings based on an ineffective assistance of counsel claim that could have been pre- sented in her first appeal to the board. Thus, while the board acknowledged that Uribe Uribe met the procedural requirements for making out an ineffective assistance of counsel claim, the board denied her motion to reopen because she failed to show that the claim could not have been presented earlier. See 8 C.F.R. § 1003.2(a), (c)(1) (authorizing the board to deny a motion to reo- pen when the petitioner “has made out a prima facie case for relief ” but fails to provide evidence that “could not have been discovered or presented” earlier); see also I.N.S. v. Doherty, 502 U.S. 314, 323 (1992) (listing the “failure to introduce previously unavailable, ma- terial evidence” as an independent ground to deny a motion to re- open).

Uribe Uribe counters that our decision in Sow v. United States Attorney General, 949 F.3d 1312 (11th Cir. 2020) demands reversal of the board’s decision. In Sow, we concluded that the board abused its discretion in denying a petitioner’s ineffective assistance of coun- sel claim. Id. at 1318–19. But, unlike Uribe Uribe, the petitioner in USCA11 Case: 23-10043 Document: 36-1 Date Filed: 07/09/2024 Page: 6 of 6

6 Opinion of the Court 23-10043 that case properly raised his ineffective assistance of counsel claim before the board’s decision on his initial appeal. Id. at 1316 n.5.

Thus, Sow does not apply to this case in which the board properly denied Uribe Uribe’s motion to reopen for failing to provide new facts that could not have been presented in her initial appeal.

PETITIONS DENIED.