[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 25, 2007
No. 06-14947 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A76-531-649
JACQUELINE FINLAYSON-GREEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 25, 2007)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Jacqueline Finlayson-Green, a native and citizen of Jamaica, appeals the
Board of Immigration Appeal’s (“BIA”) denial of her motion to reconsider its
denial of her motion to reopen. In this case, the Immigration Judge (“IJ”) ordered
Finlayson-Green removed in absentia.
Background
Finlayson-Green was ordered removed in absentia, after her counsel
advised her not to attend a removal hearing for which Finlayson-Green had
received a notice to appear. Finlayson-Green’s counsel had filed a motion to
change venue, which was denied, and a motion for reconsideration of the denial,
which was denied at the hearing. At the removal hearing, the IJ found that
Finlayson-Green had received notice of the hearing and had been properly served
before ordering her removed in absentia.
Finlayson-Green appealed the order to the BIA, arguing the IJ had
improperly denied her motion for a change of venue or telephonic appearance.
The BIA affirmed without opinion. In October 2005, Finlayson-Green filed a
motion to reopen with the BIA through new counsel. In the motion, Finlayson-
Green alleged that her previous counsel rendered ineffective assistance of counsel,
which resulted in Finlayson-Green’s failure to attend the removal hearing, and the
failure to properly appeal the in absentia removal order to this Court. The BIA
denied the motion as untimely and also denied Finlayson-Green’s subsequent
motion to reconsider.
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Standard of Review
We review the denial of a motion to reopen for abuse of discretion, and we
are limited to "determining whether there has been an exercise of administrative
discretion and whether the matter of exercise has been arbitrary or capricious." Ali
v. U.S. Att'y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (per curiam) (citation and
quotation marks omitted). Motions to reconsider are also reviewed for abuse of
discretion. Assa'ad v. U.S. Att'y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003).
Motions to reconsider and reopen are disfavored, especially in a removal
proceeding, “where, as a general matter, every delay works to the advantage of the
deportable alien who wishes merely to remain in the United States.” INS v.
Doherty, 502 U.S. 314, 323, 112 S. Ct. 719, 724-25, 116 L. Ed. 2d 823 (1992)
(discussing motions to reopen).
Discussion
Finlayson-Green argues that the BIA wrongfully concluded that the
untimeliness of her motion to reopen deprived it of jurisdiction over the motion
and her subsequent motion to reconsider. Finlayson-Green also argues that the
BIA should have applied equitable tolling or reopened her case sua sponte .
The BIA did not abuse its discretion by failing to apply equitable tolling to
Finlayson-Green’s petition to reopen. When an alien fails to appear as directed in
a notice of a removal hearing, the alien “shall be ordered removed in absentia” if
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the government “establishes by clear, unequivocal, and convincing evidence that
the written notice was so provided and that the alien is removable.” 8 U.S.C.
§ 1229a(b)(5)(A). Such an order can be rescinded “only” (1) if the alien files a
motion to reopen within 180 days of the order’s entry and successfully
demonstrates that the failure to appear was because of exceptional circumstances,
or (2) at any time if the alien demonstrates that she did not receive the notice to
appear in accordance with 8 U.S.C. § 1229(a)(1) and (2). 8 U.S.C.
§ 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(ii).
Finlayson-Green does not contend that she did not receive notice to appear;
instead she admits that she did receive it, but contends that she failed to appear due
to the ineffective assistance of her counsel. Finlayson then filed her motion to
reopen over 2 years after the BIA issued its decision affirming the IJ’s in absentia
removal order. We have held that the 180-day time limitation is “jurisdictional and
mandatory” and cannot be equitably tolled on account of ineffective assistance of
counsel. Anin v. Reno, 188 F.3d 1273, 1278-79 (11th Cir. 1999) (per curiam).
Therefore, the BIA did not abuse its discretion in denying the motion to reopen
based on untimeliness.
While we have jurisdiction to review the BIA's decision not to exercise its
sua sponte authority to reopen or reconsider, we hold that the BIA did not abuse its
discretion. Decisions not to reopen under § 1003.2(a) are reviewed for an abuse of
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discretion. See Anin, 188 F.3d at 1279. While the BIA may sua sponte grant a
motion to reopen at any time pursuant to 8 C.F.R. § 1003.2(a), the BIA has wide
discretion to deny such a motion, even if the moving party has met its prima facie
burden to reopen. 8 C.F.R. § 1003.2(a). Under § 1003.2(a), the BIA has the
discretion to reopen the proceedings “as it sees fit.” Anin, 188 F.3d at 1279
(discussing 8 C.F.R. § 3.2(a) a prior version of § 1003.2(a)). Given the
untimeliness of Finlayson-Green’s motions, we can find no abuse of discretion
here.
Upon review of the administrative record and the parties’ briefs, we discern
no error in the BIA’s decisions. The BIA committed no errors of law or fact by
denying her motion to rescind and, thus, also did not abuse its discretion in
denying the motion to reconsider. Accordingly, we deny the petition for review.
PETITION DENIED.
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