[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 21, 2008
No. 07-15738 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A79-471-365
A79-471-366
JUAN FERNANDO RODAS,
LUZ MARIETTA PINEDA,
MATEO RODAS,
JUANA RODAS,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 21, 2008)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Petitioners Juan Fernando Rodas and Luz Marietta Pineda, and their
children, Mateo Rodas and Juana Rodas (collectively “Petitioners”), through
counsel, seek review of the Board of Immigration Appeals’ (“BIA”) denial of their
motion to reopen their removal proceedings for being time-barred pursuant to
8 C.F.R. § 1003.2(c)(2). In their brief, Petitioners assert that the deadline for filing
their motion to reopen should have been equitably tolled because their appeal of
the Immigration Judge’s decision was dismissed due to ineffective assistance of
counsel, and they filed their motion to reopen within 90 days of discovering such
ineffective assistance. Petitioners also contend that the BIA’s denial of their
motion to reopen violated their right to due process.
We review the BIA’s denial of a motion to reopen proceedings for abuse of
discretion.1 Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). This
review is limited to determining whether the BIA has exercised discretion and
whether “the matter of exercise has been arbitrary or capricious.” Id. (quotation
omitted).
An alien may file a motion to reopen if the motion states new facts that
would be proven at a hearing and if those facts are supported by affidavits or other
evidence. 8 U.S.C. § 1229a(c)(7)(A), (B); 8 C.F.R. § 1003.2(c)(1). A motion to
1
The decision to grant or deny a motion to reopen is within the discretion of the BIA. 8
C.F.R. § 1003.2(a).
2
reopen “must be filed no later than 90 days after the date on which the final
administrative decision was rendered in the proceeding sought to be reopened.”
8 C.F.R § 1003.2(c)(2).2 In Abdi, we considered whether the alien’s motion to
reopen based on ineffective assistance of counsel, filed after the 90-day deadline in
8 C.F.R. § 1003.2(c)(2), could be equitably tolled. 430 F.3d at 1148-49. We
concluded that the 90-day filing deadline is “mandatory and jurisdictional, and,
therefore, it is not subject to equitable tolling.” Id. at 1150.
Having reviewed the record in this case, we conclude that the BIA did not
abuse its discretion by denying Petitioners’ motion to reopen as time-barred; nor
did the BIA deny Petitioners due process of law.
PETITION DENIED.
2
The regulations provide for four statutory exceptions to the 90-day filing deadline, but
these exceptions are not at issue or relevant here. See 8 C.F.R § 1003.2(c)(3).
3