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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-13183
Non-Argument Calendar
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Agency No. A023-609-258
RODOLFO MARTINEZ-RIVERA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 3, 2017)
Before HULL, WILSON and FAY, Circuit Judges.
PER CURIAM:
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Rodolfo Martinez-Rivera petitions for review of the Board of Immigration
Appeals (“BIA”) order affirming the denial by the immigration judge (“IJ”) of his
motion to reopen removal proceedings. We deny the petition in part and dismiss in
part.
I. BACKGROUND
Martinez-Rivera, a native and citizen of Cuba, was paroled into the United
States in August 1982. His status was later adjusted to lawful permanent resident.
In April 1991, Martinez-Rivera was convicted of conspiracy to import at least 1000
kilograms of marijuana, in violation of 21 U.S.C. §§ 960, 963. Based on that
conviction, Martinez-Rivera was served with a Notice to Appear in April 1999,
which charged him as removable for having been convicted of an aggravated
felony and controlled-substance crime. On August 17, 1999, an IJ issued a final
order of removal against Martinez-Rivera based on his admission to the charges in
the Notice to Appear. Martinez-Rivera made no application for relief from
removal at that time; the IJ ordered him removed to Cuba.
On May 11, 2015, Martinez-Rivera filed a motion to reopen removal
proceedings. Martinez-Rivera argued he was eligible for and entitled to relief
under former INA § 212(c). He alternatively requested reopening to apply for
asylum, withholding of removal, and relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
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(“CAT”). The Department of Homeland Security (“DHS”) opposed the motion,
argued the motion was untimely, and contended Martinez-Rivera was ineligible for
the relief he sought.
The IJ denied Martinez-Rivera’s motion. The IJ concluded the motion was
untimely, because it was filed well beyond the 90-day-statutory deadline for filing
a motion to reopen; Martinez-Rivera had not established any of the exceptions to
the 90-day deadline applied. Martinez-Rivera’s motion was untimely as a special
motion to reopen for § 212(c) relief under the Supreme Court decision in INS v. St.
Cyr, 533 U.S. 289, 121 S. Ct. 2271 (2001); the deadline for this motion was April
26, 2005. Even presuming Martinez-Rivera’s motion was not time-barred, the IJ
concluded he had failed to demonstrate he was eligible for a § 212(c) waiver and
procedurally had defaulted his asylum claim, because he did not attach an I-589
application to his motion to reopen.
Martinez-Rivera appealed to the BIA. He again argued he was eligible for
the relief sought in his motion, but he did not address the timeliness issue. The
BIA affirmed the IJ’s denial of the motion to reopen and dismissed Martinez-
Rivera’s appeal. The BIA noted Martinez-Rivera’s motion had been filed well
beyond the 90-day deadline; he had not explained the delay in filing the motion or
established an exception to the filing deadline. Consequently, the BIA concluded
the IJ correctly had denied the motion as untimely and declined to reach the IJ’s
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alternative bases for denying the motion. The BIA also noted Martinez-Rivera had
not shown reopening under the Board’s sua sponte authority would be warranted.
On petition for review, Martinez-Rivera argues he is eligible for relief under
former INA § 212(c). He contends the IJ erroneously determined he was ineligible
for relief, and the BIA erred in not correcting that legal error.
II. DISCUSSION
“When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopted the IJ’s decision.” Rodriguez v. U.S. Att’y
Gen., 735 F.3d 1302, 1308 (11th Cir. 2013). We review the denial of a motion to
reopen for abuse of discretion. Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir.
2006). Under the INA, an alien may file one motion to reopen removal
proceedings, which generally must be filed within 90 days of the BIA final order of
removal, with certain limited exceptions. INA § 240(c)(7), 8 U.S.C. § 1229a(c)(7);
8 C.F.R. § 1003.2(c). The 90-day filing requirement does not apply, where (1) the
alien is seeking asylum or withholding of removal based on changed country
conditions; (2) the alien seeks rescission of a removal order entered in absentia;
(3) the special rule for battered spouses, children, and parents applies; (4) the
motion was jointly filed by the alien and the government; or (5) the government
seeks termination of asylum. INA § 240(c)(7), 8 U.S.C. § 1229a(c)(7)(C)(ii), (iv);
8 C.F.R. § 1003.2(c)(3). We have held the 90-day time limit “is a non-
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jurisdictional claim-processing rule that is subject to equitable tolling.” Ruiz-
Turcios v. U.S. Att’y Gen., 717 F.3d 847, 849 (11th Cir. 2013). To establish
equitable tolling, a litigant must show he has been diligently pursuing his rights
and extraordinary circumstances prevented the timely filing of his motion to
reopen. Id. at 851.
In addition to the statutory authority to reopen, the IJ and the BIA have the
regulatory authority to reopen proceedings sua sponte. 8 C.F.R. § 1003.23(b)(1);
id. § 1003.2(a). Sua sponte reopening is not subject to the statutory-time bar for
motions to reopen. 8 C.F.R. § 1003.23(b)(1); id. § 1003.2(a). We lack jurisdiction
to review the denial of a motion to reopen based solely on the BIA’s sua sponte
authority. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1292-93 (11th Cir. 2008); see
also Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1285-86 (11th Cir. 2016)
(reaffirming Lenis and rejecting the argument we have jurisdiction to review legal
issues presented in a motion for sua sponte reopening). In Lenis, we concluded the
BIA’s decision whether to reopen proceedings sua sponte “is committed to agency
discretion by law,” and the regulation authorizing sua sponte reopening does not
“provide[] any ‘meaningful standard against which to judge the agency’s exercise
of discretion.’” Lenis, 525 F.3d at 1293-94 (quoting Heckler v. Chaney, 470 U.S.
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821, 830, 105 S. Ct. 1649, 1655 (1985)). Therefore, we lack jurisdiction to review
these decisions. 1 Id.
Martinez-Rivera does not contest the BIA determination his motion to
reopen was untimely and none of the exceptions to the filing deadline applied; nor
does he contend he is entitled to equitable tolling based on exceptional
circumstances. Consequently, he has abandoned any challenge to the sole basis on
which the BIA affirmed the denial of his statutory motion to reopen, because the
BIA did not adopt the IJ decision on the merits of his § 212(c) claim. Access Now,
Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (recognizing
arguments not briefed on appeal are deemed abandoned).
Even if Martinez-Rivera had preserved his challenge, it would fail. As the
BIA correctly noted, Martinez-Rivera’s May 11, 2015, motion was filed well
beyond the 90-day deadline for seeking reopening of the August 17, 1999, final
order of removal. INA § 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i). Martinez-
Rivera has never argued any of the exceptions to the 90-day deadline apply in his
case, nor does it appear from the record any of the exceptions apply. See INA
§ 240(c)(7), 8 U.S.C. § 1229a(c)(7)(C)(ii), (iv); 8 C.F.R. § 1003.2(c)(3). Martinez-
Rivera has never argued he is entitled to equitable tolling, nor has he identified any
1
We did “note, in passing, that an appellate court may have jurisdiction over constitutional
claims related to the BIA’s decision not to exercise its sua sponte power.” Lenis, 525 F.3d at
1294 n.7.
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extraordinary circumstances prevented him from filing a timely motion to reopen
seeking relief under former § 212(c). Ruiz-Turcios, 717 F.3d at 851. The BIA did
not err in concluding the IJ properly denied Martinez-Rivera’s motion to reopen as
untimely. To the extent Martinez-Rivera argues his § 212(c) claim entitled him to
reopening under the BIA’s sua sponte authority, we lack jurisdiction to review that
argument. Butka, 827 F.3d at 1285-86; Lenis, 525 F.3d at 1292-93.
PETITION DENIED IN PART AND DISMISSED IN PART.
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