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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-13183
                         Non-Argument Calendar
                       ________________________

                        Agency No. A023-609-258




RODOLFO MARTINEZ-RIVERA,

                                                                       Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

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

                             (February 3, 2017)

Before HULL, WILSON and FAY, Circuit Judges.

PER CURIAM:
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        Rodolfo Martinez-Rivera petitions for review of the Board of Immigration

Appeals (“BIA”) order affirming the denial by the immigration judge (“IJ”) of his

motion to reopen removal proceedings. We deny the petition in part and dismiss in

part.

                                I. BACKGROUND

        Martinez-Rivera, a native and citizen of Cuba, was paroled into the United

States in August 1982. His status was later adjusted to lawful permanent resident.

In April 1991, Martinez-Rivera was convicted of conspiracy to import at least 1000

kilograms of marijuana, in violation of 21 U.S.C. §§ 960, 963. Based on that

conviction, Martinez-Rivera was served with a Notice to Appear in April 1999,

which charged him as removable for having been convicted of an aggravated

felony and controlled-substance crime. On August 17, 1999, an IJ issued a final

order of removal against Martinez-Rivera based on his admission to the charges in

the Notice to Appear. Martinez-Rivera made no application for relief from

removal at that time; the IJ ordered him removed to Cuba.

        On May 11, 2015, Martinez-Rivera filed a motion to reopen removal

proceedings. Martinez-Rivera argued he was eligible for and entitled to relief

under former INA § 212(c). He alternatively requested reopening to apply for

asylum, withholding of removal, and relief under the United Nations Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment


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(“CAT”). The Department of Homeland Security (“DHS”) opposed the motion,

argued the motion was untimely, and contended Martinez-Rivera was ineligible for

the relief he sought.

      The IJ denied Martinez-Rivera’s motion. The IJ concluded the motion was

untimely, because it was filed well beyond the 90-day-statutory deadline for filing

a motion to reopen; Martinez-Rivera had not established any of the exceptions to

the 90-day deadline applied. Martinez-Rivera’s motion was untimely as a special

motion to reopen for § 212(c) relief under the Supreme Court decision in INS v. St.

Cyr, 533 U.S. 289, 121 S. Ct. 2271 (2001); the deadline for this motion was April

26, 2005. Even presuming Martinez-Rivera’s motion was not time-barred, the IJ

concluded he had failed to demonstrate he was eligible for a § 212(c) waiver and

procedurally had defaulted his asylum claim, because he did not attach an I-589

application to his motion to reopen.

      Martinez-Rivera appealed to the BIA. He again argued he was eligible for

the relief sought in his motion, but he did not address the timeliness issue. The

BIA affirmed the IJ’s denial of the motion to reopen and dismissed Martinez-

Rivera’s appeal. The BIA noted Martinez-Rivera’s motion had been filed well

beyond the 90-day deadline; he had not explained the delay in filing the motion or

established an exception to the filing deadline. Consequently, the BIA concluded

the IJ correctly had denied the motion as untimely and declined to reach the IJ’s


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alternative bases for denying the motion. The BIA also noted Martinez-Rivera had

not shown reopening under the Board’s sua sponte authority would be warranted.

On petition for review, Martinez-Rivera argues he is eligible for relief under

former INA § 212(c). He contends the IJ erroneously determined he was ineligible

for relief, and the BIA erred in not correcting that legal error.

                                  II. DISCUSSION

      “When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopted the IJ’s decision.” Rodriguez v. U.S. Att’y

Gen., 735 F.3d 1302, 1308 (11th Cir. 2013). We review the denial of a motion to

reopen for abuse of discretion. Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir.

2006). Under the INA, an alien may file one motion to reopen removal

proceedings, which generally must be filed within 90 days of the BIA final order of

removal, with certain limited exceptions. INA § 240(c)(7), 8 U.S.C. § 1229a(c)(7);

8 C.F.R. § 1003.2(c). The 90-day filing requirement does not apply, where (1) the

alien is seeking asylum or withholding of removal based on changed country

conditions; (2) the alien seeks rescission of a removal order entered in absentia;

(3) the special rule for battered spouses, children, and parents applies; (4) the

motion was jointly filed by the alien and the government; or (5) the government

seeks termination of asylum. INA § 240(c)(7), 8 U.S.C. § 1229a(c)(7)(C)(ii), (iv);

8 C.F.R. § 1003.2(c)(3). We have held the 90-day time limit “is a non-


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jurisdictional claim-processing rule that is subject to equitable tolling.” Ruiz-

Turcios v. U.S. Att’y Gen., 717 F.3d 847, 849 (11th Cir. 2013). To establish

equitable tolling, a litigant must show he has been diligently pursuing his rights

and extraordinary circumstances prevented the timely filing of his motion to

reopen. Id. at 851.

      In addition to the statutory authority to reopen, the IJ and the BIA have the

regulatory authority to reopen proceedings sua sponte. 8 C.F.R. § 1003.23(b)(1);

id. § 1003.2(a). Sua sponte reopening is not subject to the statutory-time bar for

motions to reopen. 8 C.F.R. § 1003.23(b)(1); id. § 1003.2(a). We lack jurisdiction

to review the denial of a motion to reopen based solely on the BIA’s sua sponte

authority. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1292-93 (11th Cir. 2008); see

also Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1285-86 (11th Cir. 2016)

(reaffirming Lenis and rejecting the argument we have jurisdiction to review legal

issues presented in a motion for sua sponte reopening). In Lenis, we concluded the

BIA’s decision whether to reopen proceedings sua sponte “is committed to agency

discretion by law,” and the regulation authorizing sua sponte reopening does not

“provide[] any ‘meaningful standard against which to judge the agency’s exercise

of discretion.’” Lenis, 525 F.3d at 1293-94 (quoting Heckler v. Chaney, 470 U.S.




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821, 830, 105 S. Ct. 1649, 1655 (1985)). Therefore, we lack jurisdiction to review

these decisions. 1 Id.

       Martinez-Rivera does not contest the BIA determination his motion to

reopen was untimely and none of the exceptions to the filing deadline applied; nor

does he contend he is entitled to equitable tolling based on exceptional

circumstances. Consequently, he has abandoned any challenge to the sole basis on

which the BIA affirmed the denial of his statutory motion to reopen, because the

BIA did not adopt the IJ decision on the merits of his § 212(c) claim. Access Now,

Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (recognizing

arguments not briefed on appeal are deemed abandoned).

       Even if Martinez-Rivera had preserved his challenge, it would fail. As the

BIA correctly noted, Martinez-Rivera’s May 11, 2015, motion was filed well

beyond the 90-day deadline for seeking reopening of the August 17, 1999, final

order of removal. INA § 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i). Martinez-

Rivera has never argued any of the exceptions to the 90-day deadline apply in his

case, nor does it appear from the record any of the exceptions apply. See INA

§ 240(c)(7), 8 U.S.C. § 1229a(c)(7)(C)(ii), (iv); 8 C.F.R. § 1003.2(c)(3). Martinez-

Rivera has never argued he is entitled to equitable tolling, nor has he identified any


1
  We did “note, in passing, that an appellate court may have jurisdiction over constitutional
claims related to the BIA’s decision not to exercise its sua sponte power.” Lenis, 525 F.3d at
1294 n.7.
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extraordinary circumstances prevented him from filing a timely motion to reopen

seeking relief under former § 212(c). Ruiz-Turcios, 717 F.3d at 851. The BIA did

not err in concluding the IJ properly denied Martinez-Rivera’s motion to reopen as

untimely. To the extent Martinez-Rivera argues his § 212(c) claim entitled him to

reopening under the BIA’s sua sponte authority, we lack jurisdiction to review that

argument. Butka, 827 F.3d at 1285-86; Lenis, 525 F.3d at 1292-93.

      PETITION DENIED IN PART AND DISMISSED IN PART.




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