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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11962
Non-Argument Calendar
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Agency No. A091-448-390
JESUS RICARDO VILLALOBOS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(January 11, 2018)
Before WILSON, JORDAN and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Jesus Villalobos, a native and citizen of Mexico, seeks review of an order of
the Board of Immigration Appeals (“BIA”) denying his motion to reconsider its
initial decision, in which it concluded that he failed to qualify for relief under
former § 212(c) of the Immigration and Nationality Act (“INA”).1 For the reasons
that follow, we must dismiss Villalobos’s petition.
I.
Villalobos, who first entered the United States in 1979, was admitted as a
temporary resident in 1988. In February 1991, he was convicted of possession of
cocaine; he was convicted again of possession of cocaine in May 1991. Then, in
November 1991, he adjusted his status to that of a permanent resident. One year
later, he was convicted of the sale, purchase, or delivery of cocaine, as well as
possession of cocaine.
Villalobos was later charged with removability. He conceded that he was
removable under INA § 237(a)(2)(B)(i), 2 but he requested a waiver under § 212(c).
The immigration judge (“IJ”) concluded that because Villalobos had been
1
Under § 212(c), “any permanent resident alien with a lawful unrelinquished domicile of
seven consecutive years [could] apply for a discretionary waiver from deportation.” I.N.S. v. St.
Cyr, 533 U.S. 289, 295 (2001) (internal quotation marks omitted). Congress repealed § 212(c) in
1996, but the Supreme Court has held that “§ 212(c) relief remains available” for noncitizens
“whose convictions were obtained through plea agreements and who, notwithstanding those
convictions, would have been eligible for § 212(c) relief at the time of their plea under the law
then in effect.” Id. at 326.
2
Under § 237(a)(2)(B)(i), any noncitizen who was convicted of a controlled substance
violation, “other than a single offense involving possession for one’s own use of 30 grams or less
of marijuana, is deportable.”
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convicted of cocaine possession in early 1991, his later status adjustment to
permanent resident was invalid. Because he had not been lawfully admitted for
permanent residence, the IJ concluded, Villalobos was ineligible for relief under
§ 212(c). Villalobos appealed to the BIA, who dismissed his appeal, concluding,
like the IJ, that Villalobos’s criminal convictions had prevented him from
becoming a lawful permanent resident, which was a prerequisite for § 212(c) relief.
Villalobos did not appeal the BIA’s order to this Court. Instead, after the
time to file a motion to reconsider had expired, he moved the BIA to accept a late-
filed motion to reconsider its decision, which the BIA denied. 3 Villalobos then
renewed his motion to accept a late-filed motion to reconsider, filing it along with
the motion to reconsider.
The BIA, considering the two motions in conjunction, determined that the
motion to reconsider had been filed out of time. It construed his renewed motion
to accept a late-filed motion to reconsider as arguing that his time for filing a
motion to reconsider should be equitably tolled, but concluded that his reason for
the untimely filing did not constitute an extraordinary circumstance, as required for
equitable tolling. The BIA also noted that a motion to reconsider must identify an
error of fact or law in the BIA’s prior decision; it concluded that the motion failed
to do so and that its earlier determination that Villalobos did not qualify for relief
3
Motions to reconsider “must be filed within 30 days of the date of entry of a final
administrative order of removal.” INA § 240(c)(6)(B).
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under § 212(c) was correct. Villalobos petitioned this Court for review, arguing
that BIA erred in concluding that he was ineligible for § 212(c) relief.
II.
We review de novo our subject matter jurisdiction. Butka v. U.S. Att’y Gen.,
827 F.3d 1278, 1282 n.4 (11th Cir. 2016). We lack jurisdiction to review a final
order of removal entered against a noncitizen because of a criminal conviction
covered in § 237(a)(2)(B), which includes certain controlled substance violations.
See INA § 242(a)(2)(C). This bar on our jurisdiction applies unless the petitioner
has presented a constitutional claim or question of law. Id. § 237(a)(2)(D).
Here, the BIA concluded that Villalobos’s motion to reconsider was filed out
of time and that he failed to present sufficient evidence of an extraordinary
circumstance to justify equitable tolling. The BIA’s denial, therefore, was based
on a factual determination. Cf. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954,
957 (11th Cir. 2005) (“The timeliness of an asylum application is not a
constitutional claim or question of law . . . .”). We thus lack jurisdiction to review
this decision. Because the BIA’s determination that Villalobos’s motion to
reconsider was untimely is dispositive, we do not consider his argument that the
BIA erred in its conclusion that he was ineligible for § 212(c) relief.
III.
For these reasons, we dismiss Villalobos’s petition for lack of jurisdiction.
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DISMISSED.
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