[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12048 DECEMBER 20, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
Agency No. A098-673-988
JUAN TOMAS MARTIN,
llllllllllllllllllllllllllllllllllllllllPetitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllllRespondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
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(December 20, 2011)
Before BARKETT, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Juan Thomas Martin, a citizen of Guatemala, petitioned pro se for review of
an order from the Board of Immigration Appeals denying his motion to reopen
removal proceedings as untimely.
In May 2006, Martin appealed an Immigration Judge’s decision denying his
application for asylum and withholding of removal. The BIA subsequently issued
two briefing notices—one on March 6, 2007 and one on April 5, 2007. The
second briefing notice extended the initial briefing deadline from March 26, 2007
to April 26, 2007. When Martin failed to respond to either notice, the BIA
dismissed his appeal as moot, because Martin had apparently abandoned the
matter. On November 1, 2010, Martin filed a pro se motion to reopen the
proceedings with the BIA. The BIA denied Martin’s motion to reopen as
untimely, noting that Martin failed to satisfy any of the exceptions to the timely
filing requirement under 8 U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.2(c)(2). The
BIA also found no exceptional circumstances warranting reopening of the
proceedings sua sponte. Martin appeals this determination.
On appeal, Martin essentially argues that the BIA’s dismissal of his appeal
as abandoned violated his due process rights, because he sufficiently stated his
basis for appeal in his notice of appeal, and because his illiteracy prevented him
from understanding the briefing notices. Martin also contends that he
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demonstrated exceptional circumstances sufficient to support his motion to
reopen. We review each argument in turn.
As an initial matter, this Court lacks jurisdiction to review BIA decisions,
unless a petition for review is filed within thirty days of the final order of removal.
8 U.S.C. § 1252(a)(2)(A), (b)(1); Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272
n. 3 (11th Cir. 2005). Here, the BIA dismissed Martin’s appeal as abandoned on
September 18, 2007. Martin did not appeal that determination until this year.
This being the case, we lack jurisdiction to review the BIA’s decision to dismiss
the appeal, and therefore dismiss any challenges to the BIA’s September 18, 2007
decision, including Martin’s due process claims based on the sufficiency of his
basis for appeal and his illiteracy. This Court also lacks jurisdiction to review the
BIA’s refusal to exercise its sua sponte powers to reopen a proceeding. Lenis v.
U.S. Att’y Gen., 525 F.3d 1291, 1294 (11th Cir. 2008). We therefore dismiss any
challenges under the BIA’s sua sponte power.
As a result of the limits on our jurisdiction, we must limit our review to
whether the BIA was required by statute to grant Martin’s motion to reopen. “We
review the BIA’s 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).
The BIA did not abuse its discretion by denying Martin’s untimely motion
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to reopen his removal proceedings under 8 U.S.C. § 1229a(c)(7). In general, an
alien may file one motion to reopen removal proceedings, provided that the motion
is filed within ninety days of a final administrative order of removal. 8 U.S.C.
§ 1229a(c)(7)(C)(i). However, there is no time limit for motions to reopen asylum
proceedings “based on changed country conditions arising in the country of
nationality or the country to which removal has been ordered, if such evidence is
material and was not available and would not have been discovered or presented at
the previous proceeding.” Id. § 1229a(c)(7)(C)(ii). A change in personal
circumstances does not satisfy the requirements of changed country conditions.
Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1258 (11th Cir. 2009).
Martin failed to present any new evidence of changed conditions in
Guatemala to support his untimely motion to reopen under § 1229a(c)(7)(C)(ii).
While we recognize the difficulty of Martin’s personal situation as a father of four
children, it does not warrant relief from the ninety-day statutory limit. See Jiang,
568 F.3d at 1258.
PETITION DISMISSED IN PART, DENIED IN PART.
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