                                                                   [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-12355                ELEVENTH CIRCUIT
                                   Non-Argument Calendar              JANUARY 5, 2011
                                 ________________________               JOHN LEY
                                                                         CLERK
                                  Agency No. A072-020-097

AMYN A. HIRANI,

lllllllllllllllllllll                                                     Petitioner,

                                            versus



UNITED STATES ATTORNEY GENERAL,

lllllllllllllllllllll                                                     Respondent.

                                ________________________

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

                                       (January 5, 2011)

Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

         Amyn Hirani petitions this court for review of the Board of Immigration
Appeals’ (BIA) order denying his motion to reopen removal proceedings. Hirani

filed the motion nearly ten years after he was granted voluntary departure. The

Immigration Judge (IJ), as affirmed by the BIA, denied Hirani’s motion to reopen

because it was untimely and because of Hirani’s efforts to avoid enforcement of

the departure order. We deny the petition.

                                          I.

      In March 2009, almost ten years after he was granted voluntary departure,

Hirani filed a motion to reopen his removal proceedings. Hirani claimed that

exceptional circumstances warranted reopening his proceedings because he was

unable to depart the United States as he was the sole provider for his two children,

who are United States citizens. But Hirani’s motion was not filed within 90 days

of the IJ’s final administrative decision granting voluntary departure.

Additionally, Hirani had failed to depart within the time allowed and changed his

name to avoid immigration officers. The IJ denied his motion as untimely.

Further, the IJ determined that Hirani was not eligible for adjustment of status

because he failed to file the proper forms in support of his application and he did

not demonstrate prima facie eligibility for relief.

      Hirani filed a motion for reconsideration, which the IJ denied, reiterating

that his motion to reopen was untimely. Though the IJ recognized that he had the


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power to reopen any case over which he had jurisdiction, he declined to exercise

discretion, given that Hirani had not departed as ordered in 1999, had changed his

name to avoid detection by immigration officials, and had moved to a different

state to avoid enforcement of the voluntary dismissal order. Hirani filed a notice

of appeal with the BIA.1 The BIA affirmed the IJ’s ruling. Hirani then filed a

petition for review with this court.



                                            II.

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

Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). Judicial review

for abuse of discretion is “limited to determining whether the BIA exercised its

discretion in an arbitrary or capricious manner.” Zhang v. U. S. Att’y Gen., 572

F.3d 1316, 1319 (11th Cir. 2009). The BIA’s discretion to reopen “is so wide that

even if the party moving has made out a prima facie case for relief, the BIA can

deny a motion to reopen a deportation order.” Anin v. Reno, 188 F.3d 1273, 1279

(11th Cir. 1999) (internal quotation marks omitted). “Generally, motions to



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         Although the BIA construed Hirani’s appeal as one from the IJ’s denial of his motion to
reconsider, rather than from the original motion to reopen, the BIA focused its analysis on the
merits of the underlying motion to reopen, ultimately concluding that the motion was untimely
and that the case lacked the exceptional circumstances warranting the exercise of its sua sponte
authority to reopen.

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reopen are disfavored, especially in a removal proceeding, where . . . every delay

works to the advantage of the deportable alien who wishes merely to remain in the

United States.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006).


                                         III.

      Hirani seeks review on two grounds. First, he argues that the BIA erred

when it incorrectly construed his appeal as one from the motion to reconsider,

rather than the original motion to reopen. Second, he argues that his wife’s new

status as a citizen establishes his prima facie eligibility for relief from removal.

      A motion to reopen must be filed no later than 90 days after the final

administrative decision, see 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(1), but there is

an exception in asylum and withholding-of-removal cases. The 90-day limit shall

not apply if “based on the changed circumstances arising in the country of

nationality or in the country to which deportation has been ordered.” 8 U.S.C.

§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Additionally, “[t]he Board may

at any time reopen or reconsider on its own motion any cases in which it has

rendered a decision.” 8 C.F.R. § 1003.2(a).

      The BIA did not abuse its discretion when it affirmed the IJ’s decision.

Although Hirani argues that his case should be remanded because the BIA

incorrectly construed his appeal as one from the IJ’s denial of his motion to

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reconsider, his argument ignores the substance of the dismissal, namely that the

circumstances of Hirani’s case did not warrant the exercise of the BIA’s discretion

to reopen.

      Hirani’s motion was filed almost ten years after he was granted voluntary

departure. Additionally, Hirani moved to another state and changed his name to

avoid detection by immigration officials. The BIA emphasized that all of the

decisions in Hirani’s case stemmed from the untimeliness of his original motion to

reopen. Thus, Hirani has failed to demonstrate that the BIA’s misconstruction of

his appeal was prejudicial.

      Further, Hirani does not argue that he should be excepted from the 90 day

filing period, but that the BIA should exercise its discretion to sua sponte reopen

his proceedings based on his eligibility for adjustment of status. In essence, Hirani

is challenging the BIA’s decision not to reopen. We lack the jurisdiction to review

that decision. See Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1294 (11th Cir. 2008)

(this court lacks jurisdiction to review the BIA’s decision not to sua sponte

reopen). In light of Hirani’s efforts to avoid departure and the untimeliness of his

motion, the BIA did not abuse its discretion when it denied his appeal.

PETITION DENIED.




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