                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-1415
                                      ___________

                             WAYNE ANTONIO SPENCE,
                                          Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                      ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                            (Agency No. A040-098-031)
                      Immigration Judge: Honorable Leo Finston
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  August 7, 2012
           Before: CHAGARES, VANASKIE AND BARRY, Circuit Judges

                             (Opinion filed: August 8, 2012)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

       Wayne Antonio Spence petitions for review of the Board of Immigration

Appeals’ (“BIA” or “Board”) decision denying his motion for reconsideration.

For the following reasons, we will dismiss the petition for review.
       Spence, a native and citizen of Jamaica, entered the United States in 1986 as a

lawful permanent resident. In 2007, he was convicted in New Jersey State court of

aggravated sexual assault and sentenced to six years of imprisonment. The Department

of Homeland Security subsequently issued a Notice to Appear, charging Spence with

removability for having been convicted of an aggravated felony. See 8 U.S.C.

§ 1227(a)(2)(A)(iii).

       At an administrative hearing, the Immigration Judge (“IJ”) determined that

Spence’s 2007 conviction is both an aggravated felony and a particularly serious crime,

rendering him ineligible for asylum and withholding of removal. The IJ did allow

Spence to present testimony to determine his eligibility for protection under the

Convention Against Torture (“CAT”). Spence testified that he believes that if he returns

to Jamaica, he will be harmed because he would be perceived as an outsider in the

neighborhood in which he last resided. Spence also claimed the area where he last lived,

Montego Bay, is rife with violent criminal activity and that he was robbed at gunpoint

during a 1996 visit. The IJ concluded that Spence failed to demonstrate that he is likely

to face harm rising to the level of torture. Further, the IJ concluded that even if Spence

had made such a showing, there is no indication that a public official would likely

acquiesce in or exhibit willful blindness toward his torture.

       On December 5, 2011, the BIA affirmed the decision of the IJ and dismissed

Spence’s administrative appeal. Spence did not petition for review of that decision;

instead, he timely requested that the BIA reconsider its decision. On January 20, 2012,
                                             2
the BIA denied the motion for reconsideration, concluding that rather than specifying any

errors of fact or law in its previous decision as required by 8 C.F.R. § 1003.2(b), the

motion “erroneously attributes statements to the Board that are not found in [the]

decision.” The Board also rejected Spence’s argument that the Supreme Court’s decision

in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), required the Board to reconsider its

decision. This petition for review, which was timely filed from the denial of Spence’s

motion for reconsideration, followed.

        We must first address our jurisdiction to entertain the petition for review. The

Government correctly argues we lack jurisdiction to review arguments that were not

exhausted before the BIA. Hoxha v. Holder, 559 F.3d 157, 159 & n.3 (3d Cir. 2009). In

his petition for review, Spence argues that, in affirming the IJ’s decision, the Board failed

to consider an “equal protection” argument related to his “length of stay in the United

States, family ties, [and] work history.” (Pet. Br. at 5.) However, Spence did not present

this argument to the BIA in his motion for reconsideration. (A.R. at 5-8.) His failure to

do so constitutes a failure to exhaust, thus depriving us of jurisdiction to consider the

argument. See Lin v. Att’y Gen., 543 F.3d 114, 119-21 (3d Cir. 2008). 1

       Spence also attempts to challenge the Board’s December 5, 2011 decision

upholding the IJ’s denial of his application for asylum, withholding of removal, and CAT

relief. Spence’s petition for review, however, is timely only as to the Board’s denial of


       1
         We note that this is not the type of constitutional claim that we have authority to review
in the absence of exhaustion. See Bonhometre v. Gonzales, 414 F.3d 442, 447 n.7 (3d Cir. 2005).
                                                 3
his motion for reconsideration. See Stone v. INS, 514 U.S. 386, 405 (1995) (the finality

of a removal order is not affected by the subsequent filing of a motion to reconsider).

Inasmuch as neither Spence in his motion to reconsider, nor the Board in its decision

denying reconsideration, addressed the denial of his application for asylum and related

relief, his present challenge to the denial of that application is not reviewable. See

Camara v. Att’y Gen., 580 F.3d 196, 201 n.10 (3d Cir. 2009).

       In sum, Spence has not raised any claims over which we have jurisdiction.

Accordingly, we will dismiss the petition for review.




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