                                                             [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                        U.S. COURT OF APPEALS
                            No. 09-12485                  ELEVENTH CIRCUIT
                                                           FEBRUARY 23, 2010
                        Non-Argument Calendar
                                                               JOHN LEY
                      ________________________
                                                                CLERK

                        Agency No. A029-591-175

JUAN ONOFRE SANDOVAL-CASTILLO,


                                                                     Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                      ________________________

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

                           (February 23, 2010)

Before TJOFLAT, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
       On May 15, 1989, the former Immigration and Naturalization Service served

Petitioner, a native and citizen of Dominican Republic, with an order to show

cause why he should not be removed from the United States for remaining here for

longer than permitted. On March 11, 2005, an Immigration Judge (“IJ”) ordered

him removed because he had not filed an application for adjustment of status by

the required deadline. Petitioner, represented by counsel, moved the IJ to reopen

the proceeding, asserting that he had filed an application for adjustment of status

on time. The IJ denied his motion, finding that no such application had been filed.

       Following further efforts to reopen, which we refer to in the margin,1

Petitioner, represented by new counsel, moved the IJ on November 30, 2007, to

reopen the proceedings so that Petitioner could apply for adjustment of status. The

motion stated that the case should be reopened due to the ineffective assistance

Petitioner had received from his previous attorneys. The IJ denied the November

30 motion, finding that it was untimely and that Petitioner had not shown

exceptional circumstances that would excuse the late filing.




       1
            Petitioner, through counsel, thereafter sought reopening via additional motions. On
March 23, 2006, he moved the IJ to reconsider, claiming that he had filed a second motion to
reopen in May 2005 and requesting that the second motion be treated as a motion to reconsider.
The IJ, after noting that the court’s file did not contain a May 2005 motion to reopen, denied the
March 23 motion was untimely. His efforts culminated with the November 30, 2007 motion
referred to in the text infra.
                                                    2
      Petitioner appealed the IJ’s ruling to the Board of Immigration Appeals

(“BIA”). The BIA dismissed his appeal because Petitioner’s November 30 motion

was untimely and did not articulate any of the exceptions to the 90-day time-limit

for filing motions to reopen. The BIA also found that Petitioner failed to establish

exceptional circumstances for not filing his motion earlier; even if his previous

attorneys’ performances were deficient, “the record [did] not establish that [he]

exercised due diligence in discovering and seeking to cure the attorneys’ alleged

deficient performance.” Petitioner now petitions this court for review.

      In his brief to this court, Petitioner argues that the BIA erred (1) by denying

his motion to reopen because he was provided ineffective assistance of counsel by

his former attorneys, and (2) by failing to exercise its sua sponte authority to

reopen his case. Petitioner’s first argument fails because his brief does not

challenge the reason the BIA gave for denying his motion to reopen, namely, that

he did not exercise due diligence in seeking to overcome his prior attorneys’

deficient performances. His second argument fails because we lack jurisdiction “to

hear an appeal of the BIA’s denial of a motion to reopen based on its sua sponte

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

      PETITION DENIED.




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