     Case: 11-60627     Document: 00511931369         Page: 1     Date Filed: 07/24/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 24, 2012
                                     No. 11-60627
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

OCTAVIO GONZALEZ,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A036 741 129


Before DENNIS, CLEMENT and OWEN, Circuit Judges.
PER CURIAM:*
        Octavio Gonzalez, a native and citizen of Mexico, petitions this court for
review of an order from the Board of Immigration Appeals (BIA) denying his
motion to reopen and reconsider his immigration proceedings. He maintains
that, pursuant to Lopez v. Gonzales, 549 U.S. 47 (2006), he was eligible to apply
for cancellation of removal because his prior conviction for possession of cocaine
did not constitute an aggravated felony. Gonzalez also maintains that he
received ineffective assistance of counsel. Moreover, he asserts that since the

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-60627    Document: 00511931369      Page: 2    Date Filed: 07/24/2012

                                  No. 11-60627

BIA dismissed his original appeal in 2006, the conditions in Mexico have
changed and the prevalence of violence caused by drug trafficking cartels has
caused him to fear persecution and torture if he returns to that country.
      Gonzalez’s motion to file an out-of-time reply brief is granted. However,
his claims based on Padilla v. Kentucky, 130 S. Ct. 1473 (2010), Shepard v.
United States, 544 U.S. 13 (2005), and Martinez v. Mukasey, 519 F.3d 532 (5th
Cir. 2008), were raised for the first time in this court in the reply brief. We
therefore will not review these allegations. See United States v. Aguirre-Villa,
460 F.3d 681, 683 n.2 (5th Cir. 2006).
      There is no dispute that Gonzalez’s motion to reopen and reconsider was
filed more than 90 days after the BIA dismissed the original appeal. As a result,
his requests to reconsider his case based on Lopez and on his allegations of
ineffective assistance were untimely. 8 C.F.R. § 1003.2(b)(2), (c)(2). We lack
jurisdiction to review the BIA’s decision whether to exercise its discretion to
reopen a proceeding sua sponte, and Gonzalez has not provided this court with
any exception permitting such a review. See Ramos-Bonilla v. Mukasey, 543
F.3d 216, 220 (5th Cir. 2008). To the extent that Gonzalez asserts that he should
have received equitable tolling for his diligence in raising his ineffective
assistance claim, “a request for equitable tolling of a time- or number-barred
motion to reopen on the basis of ineffective assistance of counsel is in essence an
argument that the BIA should have exercised its discretion to reopen the
proceeding sua sponte based upon the doctrine of equitable tolling,” which is
likewise unreviewable. Id. (internal quotation marks and citation omitted).
Because we lack jurisdiction to review Gonzalez’s claims on these grounds, the
appeal is dismissed in part.
      To the extent that Gonzalez sought reopening based on a change in
country conditions, the time limits for filing do not apply. See § 1003.2(c)(3)(ii).
The new evidence presented by Gonzalez did not indicate that he had a well-
founded fear of persecution or that persecution was more likely than not based

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                                  No. 11-60627

on his membership in a particular social group, and he thus is not eligible for
asylum or withholding of removal. See Mwembie v. Gonzales, 443 F.3d 405, 410
n.9 (5th Cir. 2006); Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).
Additionally, Gonzalez did not establish that any torture would be caused by or
acquiesced to by the Mexican government, and thus he is not entitled to relief
pursuant to the Convention Against Torture. See 8 C.F.R. § 208.18(a)(1).
Contrary to Gonzalez’s assertions, the BIA did not rely on evidence that was not
present in the record; he therefore was not denied due process when the BIA
failed to give him notice of its intent to do so. The BIA thus did not abuse its
discretion in denying the motion to reopen on the basis of changed country
conditions. See Panjwani v. Gonzales, 401 F.3d 626, 632 (5th Cir. 2005). The
petition for review is therefore denied in part.
      PETITION DISMISSED IN PART AND DENIED IN PART; MOTION
GRANTED.




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