                                                                                FILED
                                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                         Tenth Circuit

                           FOR THE TENTH CIRCUIT                         February 8, 2016
                       _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
JOSE SUAREZ-SANCHEZ,

      Petitioner,

v.                                               Nos. 14-9557, 14-9615, 15-9518
                                                      (Petitions for Review)
LORETTA E. LYNCH, United States
Attorney General,

      Respondent.
                       _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.
                  _________________________________

      Jose Suarez-Sanchez seeks review of three orders by the Bureau of

Immigration Appeals (BIA) denying his motions to reopen removal proceedings.1

We deny his petitions for review.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
        Mr. Suarez-Sanchez filed three motions to reopen and a separate petition to
review each order denying them. This generated three separate cases on appeal,
which we have consolidated for procedural purposes.
                                   I. Background

      Mr. Suarez-Sanchez is a native and citizen of Mexico who came to the United

States illegally and became the subject of removal proceedings in 2009. He conceded

removability, but, with the help of an attorney, applied for cancellation of removal on

grounds that it would cause exceptional hardship to two of his children. See

8 U.S.C. § 1229b(b). Alternatively, he requested permission to depart voluntarily.

See 8 U.S.C. § 1229c. Following a hearing, an Immigration Judge (IJ) denied

Mr. Suarez-Sanchez’s application for cancellation of removal, but granted his request

for voluntary departure. The BIA dismissed his appeal.

      Mr. Suarez-Sanchez did not leave the country as directed. Instead, he hired a

new attorney who filed a motion to reopen removal proceedings after the voluntary

departure period had expired. The BIA denied the motion. Mr. Suarez-Sanchez filed

two subsequent motions to reopen, which the BIA also denied.

      As noted above, Mr. Suarez-Sanchez filed a petition to review each order

denying his motions to reopen.

                                  II. Relevant Law

      An alien may file one motion to reopen removal proceedings within 90 days

after the final order of removal. 8 U.S.C. § 1229a(c)(7)(A), (C)(i).

      We review the denial of a motion to reopen for abuse of discretion. See

Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013). “The BIA abuses its

discretion when its decision provides no rational explanation, inexplicably departs



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from established policies, is devoid of any reasoning, or contains only summary or

conclusory statements.” Id. (internal quotation marks and citation omitted).

                              III. First Motion to Reopen

       The BIA denied Mr. Suarez-Sanchez’s first motion to reopen because he failed

to leave the country within the 60-day voluntary departure period, making him

ineligible for cancellation of removal, see 8 U.S.C. § 1229c(b)(2), (d)(1)(B), which is

the relief he sought in the first place. Mr. Suarez-Sanchez did not file a motion to

reconsider, see 8 U.S.C. § 1229a(c)(6) (allowing an alien to file a motion to

reconsider within 30 days after a final order), or challenge the BIA’s ruling in his

subsequent motions to reopen. See Mena-Flores v. Holder, 776 F.3d 1152, 1161

(10th Cir. 2015); Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007). Instead,

he filed a petition for review in this court, where he argues for the first time that the

BIA violated his statutory and due process right to file a motion to reopen within 90

days. But Mr. Suarez-Sanchez failed to exhaust this argument, and thereby deprived

us of jurisdiction to consider it.2 See 8 U.S.C. § 1252(d)(1) (providing, “[a] court

may review a final order of removal only if . . . the alien has exhausted all

administrative remedies available”).




       2
        The exhaustion requirement does not apply to constitutional claims the BIA
lacks authority to resolve. Vicente-Elias v. Mukasey, 532 F.3d 1086, 1094 (10th Cir.
2008). But although Mr. Suarez-Sanchez frames his argument in terms of
constitutional due process, it is a claim of procedural error that the BIA could have
remedied. See id; Akinwunmi v. I.N.S., 194 F.3d 1340, 1341 (10th Cir. 1999) (per
curiam).
                                            3
                            IV. Second Motion to Reopen

      In his second motion to reopen, Mr. Suarez-Sanchez requested a new hearing

on grounds that his former attorney was ineffective. The BIA denied the motion

because it was filed more than 90 days after the final order of removal, making it

untimely. See 8 C.F.R. § 1003.2(c)(2). Mr. Suarez-Sanchez argues the BIA should

have equitably tolled the time limit and granted his motion.

      “[T]o receive the benefit of equitable tolling, an alien must demonstrate not

only that the alien’s constitutional right to due process has been violated by the

conduct of counsel, but that the alien has exercised due diligence in pursuing the case

during the period the alien seeks to toll.” Mahamat v. Gonzales, 430 F.3d 1281, 1283

(10th Cir. 2005) (ellipsis and internal quotation marks omitted).

      The BIA concluded Mr. Suarez-Sanchez had not shown due diligence in

pursuing his ineffective assistance claim, and specifically noted that he offered no

explanation for his failure to raise the issue in his first motion to reopen. Indeed,

aside from the conclusory statement that he “exercised due diligence in this matter,”

AR at 140, Mr. Suarez-Sanchez’s motion fails to describe in any detail his efforts to

pursue this claim before the limitation period expired. And as the BIA also

recognized, Mr. Suarez-Sanchez did not allege that his former attorney’s actions

caused any delay. Because the BIA provided a rational explanation for declining to

equitably toll the filing deadline, we conclude it did not abuse its discretion. See

Maatougui, 738 F.3d at 1239.



                                            4
                             V. Third Motion to Reopen

      Mr. Suarez-Sanchez filed a petition to review the BIA’s order denying his

third motion to reopen (which the BIA construed as a motion to reconsider), but his

opening brief does not specifically address it. Rather, he argues only that the BIA

erred by denying his first and second motions to reopen. We therefore conclude

Mr. Suarez-Sanchez has forfeited any claims related to the third. See Bronson v.

Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (stating, “the omission of an issue in

an opening brief generally forfeits appellate consideration of that issue”).

                                    VI. Conclusion

      We deny Mr. Suarez-Sanchez’s petitions for review.


                                            Entered for the Court


                                            Jerome A. Holmes
                                            Circuit Judge




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