                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 09-2886
                                     ___________

                      MARIO BENABE DE LEON-GRAMAJO
                          a/k/a Mario Bernabe de Leon,
                                                  Petitioner

                                          v.

                         ATTORNEY GENERAL OF THE
                         UNITED STATES OF AMERICA,
                                              Respondent
                     ____________________________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                             (Agency No. A73 768 863)
                    Immigration Judge: Honorable Mirlande Tadal
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  October 20, 2010
              Before: SCIRICA, FISHER and ALDISERT, Circuit Judges

                               (Filed: October 25, 2010)
                                     ___________

                             OPINION OF THE COURT
                                  ___________

PER CURIAM.

       Mario Benabe De Leon-Gramajo, a citizen of Guatemala, entered the United

States in September 1985. In 2006, he was charged with removability pursuant to

Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i)]

(present without being admitted or paroled). De Leon-Gramajo conceded that he was
removable and applied for cancellation of removal pursuant to INA § 240A [8 U.S.C.

§ 1229b]. The Immigration Judge (“IJ”) denied De Leon-Gramajo’s cancellation

application, finding that he failed to establish that his removal would result in exceptional

and extremely unusual hardship to his United States citizen children. The Board of

Immigration Appeals (“BIA”) dismissed De Leon-Gramajo’s appeal on May 13, 2008.

De Leon-Gramajo filed a motion to reopen, which the BIA denied on October 31, 2008,

based on De Leon-Gramajo’s failure to state any new facts or establish that he was prima

facie eligible for cancellation of removal. On March 10, 2009, the Board denied a second

motion to reopen and a request for reconsideration of the original denial of reopening.

        Undeterred, De Leon-Gramajo filed another motion to reconsider and to reopen.

He continued to allege that his children would face extreme hardship if he was removed

to Guatemala. In particular, De Leon-Gramajo claimed that his children “do not know

how to read or write Spanish,” that he “has no where to live with his children,” that gang

violence is prevalent in Guatemala, and that the IJ “erred in not [considering] the country

conditions . . . .” On June 25, 2009, the BIA denied relief, noting that the motion

challenged its May 13, 2008, decision, that it was untimely, and that no exceptions to the

time-bar were applicable. See 8 C.F.R. § 1003.2(b)(2), (c)(2)-(3). The Board also

refused to reopen sua sponte, stating that De Leon-Gramajo had not demonstrated that his

situation was exceptional. See 8 C.F.R. § 1003.2(a). De Leon-Gramajo filed a timely

petition for review.


                                              2
           We have jurisdiction over the petition for review pursuant to INA § 242 [8 U.S.C.

§ 1252].1 We review the BIA’s denial of a motion to reopen or reconsider for abuse of

discretion. See Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). The Board’s

decision is entitled to “broad deference.” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d

Cir. 2003). To succeed, De Leon-Gramajo must demonstrate that the discretionary

decision was arbitrary, irrational, or contrary to law. See McAllister, 444 F.3d at 185.

           Notably, De Leon-Gramajo does not challenge the two primary grounds for the

Board’s decision, namely, that he sought review only of the original final order of

removal and that the motion was time-barred.2 See Bradley v. Att’y Gen., 603 F.3d 235,

243 n.8 (3d Cir. 2010) (holding that argument not raised in opening brief is waived).

Instead, he alleges that the BIA “wrongly applied the law governing the sua sponte

mechanism to reopen because there were . . . exceptional circumstances . . . .” Pet’r’s Br.

13. According to De Leon-Gramajo, protection of his children’s rights under the

Constitution and international treaties warranted sua sponte reopening. See id. at 13-21.


       1
        The petition for review was timely only as to order entered June 25, 2009,
       denying reopening and reconsideration. Therefore, in this proceeding, we
       cannot review the BIA’s original final order of removal, or its orders of
       October 13, 2008, or March 10, 2009. See INA 242(b)(1) [8 U.S.C.
       § 1252(b)(1)]; McAllister v. Att’y Gen., 444 F.3d 178, 184-85 (3d Cir.
       2006).
       2
         In his Reply Brief, De Leon-Gramajo contends that he is entitled to
       equitable tolling of the time limitations based on ineffective assistance of
       counsel. See Reply Br. 2-5. Because, however, he did not exhaust this
       claim before the BIA, we lack jurisdiction over it. See Bonhometre v.
       Gonzales, 414 F.3d 442, 447 (3d Cir. 2005).
                                               3
Generally, however, we lack jurisdiction to review the BIA’s refusal to reopen sua

sponte. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir. 2003) (holding that

sua sponte reopening authority is committed to the Board’s unfettered discretion and

there is no meaningful standard against which the exercise of that discretion can be

judged). While we may review the BIA’s decision to determine whether it arbitrarily

departed from its precedent or “settled course of adjudication” in refusing to reopen sua

sponte, see Cruz v. Att’y Gen., 452 F.3d 240, 250 (3d Cir. 2006), De Leon-Gramajo does

not allege that this exception is applicable here.

       For the foregoing reasons, we will deny De Leon-Gramajo’s petition for review.3




       3
           The Government’s motion for summary affirmance is denied.
                                              4
