                                                            [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________          FILED
                                              U.S. COURT OF APPEALS
                           No. 09-14401         ELEVENTH CIRCUIT
                                                  OCTOBER 7, 2010
                       Non-Argument Calendar
                                                     JOHN LEY
                     ________________________
                                                      CLERK

                       Agency No. A096-094-449

JUAN CARLOS DAVID TRUJILLO,


                                                                    Petitioner,

                                 versus

U.S. ATTORNEY GENERAL,

                                                                  Respondent.


                     ________________________

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

                            (October 7, 2010)

Before BARKETT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
       Juan Carlos David Trujillo, a native and citizen of Colombia who is

proceeding pro se, seeks review of the Board of Immigration Appeals’ (“BIA”)

decision construing his motion for reconsideration as a motion to reopen, and then

denying the same.

       The Immigration Judge (“IJ”) denied Trujillo’s application for asylum and

withholding of removal, which Trujillo appealed to the BIA and the BIA denied.

Trujillo did not seek review of the BIA’s decision with this Court. Subsequently,

Trujillo sought to reopen his removal proceedings before the BIA based on a claim

of ineffective assistance of counsel which the BIA denied for failure to comply

with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1998).1 Again, Trujillo did not

petition this Court for review. Instead, he filed a motion for reconsideration of the

denial of his ineffective assistance claim, which the BIA denied. The BIA

determined that the arguments Trujillo raised could have been raised earlier and

because he did not assert that there were any legal or factual defects in the prior


       1
         An alien may move to reopen his removal order on the basis of ineffective assistance of
counsel. Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1273 (11th Cir. 2005). To reopen based on
ineffective assistance of counsel, the petitioner must substantially comply with Lozada, and also
demonstrate that his counsel’s performance was so inadequate that there is a reasonable
probability that the outcome of the proceedings would have been different. Id. at 1273-74.
Lozada requires the alien to: (1) support the motion with an affidavit setting forth in detail the
agreement that was entered into with counsel and what representations counsel did or did not
make to the alien in this regard; (2) inform counsel of the allegations being leveled against him
or her and give counsel an opportunity to respond; and (3) state in the motion “‘whether a
complaint has been filed with appropriate disciplinary authorities with respect to any violation of
counsel’s ethical or legal responsibilities, and if not, why not.’” Dakane, 399 F.3d at 1274
(quoting Lozada, 19 I. & N. Dec. at 639).
                                                    2
BIA decision, reconsideration was not warranted. Second, the BIA denied his

motion to the extent it was a motion to reopen, because it was untimely – it was

filed in January 2009, more than 30 days after the order of removal was final in

June 2008 – and because it was numerically barred as this was Trujillo’s second

motion to reopen.

      On appeal, Trujillo argues that the BIA erred because it construed his

present motion as a motion to reconsider, instead of as a motion to reopen. He also

argues that his motion substantially complied with the requirements for reopening

based on ineffective assistance of counsel, under Matter of Lozada, and the BIA

erred by relying on a vacated opinion in Matter of Compean, 24 I. & N. Dec. 710

(A.G. 2009). Lastly, he argues that his due process rights were violated by the

BIA’s errors, and because he was denied the effective assistance of counsel before

the agency.

      The BIA’s denial of a motion to reopen or motion to reconsider is reviewed

for an abuse of discretion. Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir.

2005) (motion to reopen); Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1341 (11th

Cir. 2003) (motion to reconsider). 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, 430 F.3d at 1149. Review of



                                         3
constitutional challenges is de novo. Lonyem v. U.S. Att’y Gen., 352 F.3d 1338,

1341 (11th Cir. 2003).

       Here, the BIA did not abuse its discretion by denying the motion, construed

first as a motion to reconsider, because Trujillo merely repeated previous

arguments, which did not initially persuade the BIA, and he failed to cite to errors

of fact or law.2 See INA § 240(c)(6)(C), 8 U.S.C. § 1229a(c)(6)(C) (explaining

that a motion for reconsideration “shall specify the errors of law or fact in the

previous order and shall be supported by pertinent authority”); see also 8 C.F.R. §

1003.2(b)(1).

       In addition, the BIA also did not abuse its discretion by denying the motion,

construed as a second motion to reopen, because it was untimely and was

numerically barred, as Trujillo had already filed a motion to reopen based on

ineffective assistance of counsel. See INA § 240(c)(7)(C)(i), 8 U.S.C.

§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1) (providing that an alien may also file

only one motion to reopen removal proceedings, and the alien must file the motion

to reopen within 90 days of the entry of an administrative order of removal); see

also Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1228 (11th Cir. 2008)

(holding that numerical limitation applies to any given order, allowing petitioners

       2
          Contrary to Trujillo’s claim, the BIA did not rely on Matter of Compean, but rather
noted that it was required to apply the standards for ineffective assistance of counsel claims that
existed prior to the now-vacated Compean decision.
                                                  4
to file additional motions to reopen for subsequent removal orders). The time and

numerical limitations are “mandatory and jurisdictional,” and, therefore, not

subject to equitable tolling. See Abdi, 430 F.3d at 1150.

      Finally, Trujillo was not denied due process because the relief he sought was

discretionary, and he was afforded an opportunity to be heard. See Scheerer v.

U.S. Att’y Gen., 513 F.3d 1244, 1254-55 (11th Cir. 2008) (concluding that the

failure to receive relief that is purely discretionary in nature – such as a motion to

reopen or reconsider – does not amount to a deprivation of a liberty interest).

Moreover, to the extent that Trujillo claims that his due process rights were

violated in previous proceedings, we lack jurisdiction to review those claims

because he did not file a petition for review from any prior orders.

      PETITION DENIED.




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