[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12485 ELEVENTH CIRCUIT
FEBRUARY 23, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A029-591-175
JUAN ONOFRE SANDOVAL-CASTILLO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 23, 2010)
Before TJOFLAT, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
On May 15, 1989, the former Immigration and Naturalization Service served
Petitioner, a native and citizen of Dominican Republic, with an order to show
cause why he should not be removed from the United States for remaining here for
longer than permitted. On March 11, 2005, an Immigration Judge (“IJ”) ordered
him removed because he had not filed an application for adjustment of status by
the required deadline. Petitioner, represented by counsel, moved the IJ to reopen
the proceeding, asserting that he had filed an application for adjustment of status
on time. The IJ denied his motion, finding that no such application had been filed.
Following further efforts to reopen, which we refer to in the margin,1
Petitioner, represented by new counsel, moved the IJ on November 30, 2007, to
reopen the proceedings so that Petitioner could apply for adjustment of status. The
motion stated that the case should be reopened due to the ineffective assistance
Petitioner had received from his previous attorneys. The IJ denied the November
30 motion, finding that it was untimely and that Petitioner had not shown
exceptional circumstances that would excuse the late filing.
1
Petitioner, through counsel, thereafter sought reopening via additional motions. On
March 23, 2006, he moved the IJ to reconsider, claiming that he had filed a second motion to
reopen in May 2005 and requesting that the second motion be treated as a motion to reconsider.
The IJ, after noting that the court’s file did not contain a May 2005 motion to reopen, denied the
March 23 motion was untimely. His efforts culminated with the November 30, 2007 motion
referred to in the text infra.
2
Petitioner appealed the IJ’s ruling to the Board of Immigration Appeals
(“BIA”). The BIA dismissed his appeal because Petitioner’s November 30 motion
was untimely and did not articulate any of the exceptions to the 90-day time-limit
for filing motions to reopen. The BIA also found that Petitioner failed to establish
exceptional circumstances for not filing his motion earlier; even if his previous
attorneys’ performances were deficient, “the record [did] not establish that [he]
exercised due diligence in discovering and seeking to cure the attorneys’ alleged
deficient performance.” Petitioner now petitions this court for review.
In his brief to this court, Petitioner argues that the BIA erred (1) by denying
his motion to reopen because he was provided ineffective assistance of counsel by
his former attorneys, and (2) by failing to exercise its sua sponte authority to
reopen his case. Petitioner’s first argument fails because his brief does not
challenge the reason the BIA gave for denying his motion to reopen, namely, that
he did not exercise due diligence in seeking to overcome his prior attorneys’
deficient performances. His second argument fails because we lack jurisdiction “to
hear an appeal of the BIA’s denial of a motion to reopen based on its sua sponte
authority.” Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1292-93 (11th Cir. 2008).
PETITION DENIED.
3