                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                                               U.S. COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
                      ________________________       FEB 28, 2007
                                                  THOMAS K. KAHN
                            No. 06-14749               CLERK
                        Non-Argument Calendar
                      ________________________

                        Agency Nos. A97-199-661
                             A97-199-662

ADRIANA MERCEDES BENAVIDES RIVERA,
ANDRES MAURICIO MEJIA VELA,

                                                                Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                               Respondent.


                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       _________________________

                           (February 28, 2007)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:
       Petitioners Adrianna Mercedes Benavides Rivera and Andres Mauricio

Mejia-Vela, through counsel, petition this court for review of the BIA’s final order

denying the reopening of an appeal of the IJ’s denial of their claims for asylum,

withholding of removal, and CAT relief.1 The BIA denied the motion to reopen as

untimely.

       On appeal, Rivera, while acknowledging that the motion to reopen was not

filed within ninety days of the BIA’s denial of her motion for reconsideration,

nevertheless argues that equitable tolling principles should be applied because her

counsel was ineffective. Specifically, Rivera argues that her previous counsel

failed to file proper and timely motions, and he “misled” her until she later

confronted him.

       We review the BIA’s denial of a motion to reopen for an abuse of discretion.

Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003). “Our review is

limited to determining whether there has been an exercise of administrative

discretion and whether the matter of exercise has been arbitrary or capricious.”

Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005) (citation and internal

quotation marks omitted). One way to show an abuse of discretion is to highlight

the application of an incorrect or improper legal standard. See In re Ford Motor



       1
        We refer to the petitioners as “Rivera,” because she is the lead petitioner in this case,
and Mejia-Vela was only included in the original asylum proceeding as a derivative applicant.
                                                2
Co., 471 F.3d 1233, 1250 (11th Cir. 2006).

      “Motions to 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.” Abdi, 430 F.3d at 1149

(citation and internal quotation marks omitted). An alien may file one motion to

reopen, and that motion “‘shall state the new facts that will be proven at a hearing

to be held if the motion is granted, and shall be supported by affidavits or other

evidentiary material.’” Id. (quoting INA § 240(c)(7)(A), (B), 8 U.S.C. §

1229a(c)(7)(A), (B)). “A motion to reopen proceedings shall not be granted unless

it appears to the Board that evidence sought to be offered is material and was not

available and could not have been discovered or presented at the former hearing.”

8 C.F.R. § 1003.2(c)(1) (quoted in Abdi, 430 F.3d at 1149).

      “A motion to reopen immigration proceedings ‘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.’” Abdi, 430 F.3d at 1149 (quoting 8 C.F.R.

§ 1003.2(c)(2)). “[T]he statutory 90-day period for filing a notice of appeal is

mandatory and jurisdictional, and, therefore, it is not subject to equitable tolling.”

Id. at 1150. This is true, even though counsel’s deficient performance may have

caused the appeal to be untimely filed. Id. at 1148-50.

      In Abdi, an attorney appealed the BIA’s order denying a petitioner’s claims
                                           3
for relief, but failed to file a timely supporting brief, and so the BIA dismissed the

appeal. Id. at 1149. Over one year later, the petitioner, represented by different

counsel, filed a motion to reopen on the ground that the first attorney was

ineffective for failing to file the required supporting brief. Id. The BIA denied the

motion to reopen, and we affirmed on appeal because the motion was not timely

filed. Id. at 1149-50.

      “Under the well-established prior panel precedent rule of this Circuit, the

holding of the first panel to address an issue is the law of this Circuit, thereby

binding all subsequent panels unless and until the first panel’s holding is overruled

by the Court sitting en banc or by the Supreme Court.” Smith v. GTE Corp., 236

F.3d 1292, 1300 n.8 (11th Cir. 2001).

      Given our controlling precedent in Abdi, we conclude that the BIA here did

not abuse its discretion in denying the motion to reopen as untimely. Rivera did

not file her motion to reopen until May 12, 2006, indisputably more than ninety

days after the BIA denied her motion for reconsideration on December 6, 2005.

      PETITION DENIED.




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