                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                     FILED
                       ________________________          U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               August 1, 2006
                        Nos. 05-16603 & 06-10960              THOMAS K. KAHN
                         Non-Argument Calendar                    CLERK
                       ________________________

                           BIA No. A96-295-179

SULAM SIDHWANI,


                                                                     Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                       ________________________

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

                             (August 1, 2006)

Before DUBINA, HULL and WILSON, Circuit Judges.

PER CURIAM:
      Sulam Sidhwani, through counsel, petitions for review of the Board of

Immigration Appeals’ (“BIA’s”) decisions (1) affirming an Immigration Judge’s

(“IJ’s”) order denying Sidhwani’s motion to reopen removal proceedings, and

(2) denying Sidhwani’s motion for reconsideration of the BIA’s decision affirming

the denial of Sidhwani’s motion to reopen. We deny the petitions.

                                          I.

      Sidhwani, a native and citizen of Pakistan, was admitted to the United States

in May of 1999 as a nonimmigrant, with authorization to remain until November

29th of that year. In February of 2003, he was issued a Notice to Appear (“NTA”)

that charged him with being removable for remaining in the United States beyond

his authorization, and for failing to maintain or comply with the conditions of the

nonimmigrant status under which he was admitted, all in violation of the

Immigration and Nationality Act (“INA”). See 8 U.S.C. § 1227(a)(1)(B), (C)(i).

At a May 2003 hearing, Sidhwani conceded all allegations against him in the NTA,

except for an allegation of unauthorized employment. However, he later requested

a continuance of his removal hearing because he had a pending application for

labor certification. An IJ denied the request, finding that the pending application

for labor certification did not constitute good cause for a continuance, see 8 C.F.R.

§ 1003.29, because adjustment of status relief was speculative and because

granting relief would reward those who did not seek to have their prospective
                                          2
employer obtain a visa for them before their arrival. On January 29, 2004, the IJ

granted Sidhwani’s request for voluntary departure in lieu of removal, with a

departure deadline of March 29, 2004, and imposed an alternate order of removal

to Pakistan.1

       Sidhwani did not appeal the IJ’s decision to the BIA, but rather filed a

motion to reopen with the IJ on March 9, 2005, almost a year after his voluntary

departure deadline had passed. He argued that: (1) the denial of his request for a

continuance (based upon the pending labor certification) was improper; (2) he had

new relief available in the form of a pending I-140 petition filed on his behalf; and

(3) the addition of INA § 245(i), 8 U.S.C. § 1255(i), which allows certain aliens

physically present in the United States to apply for adjustment of status based,

inter alia, on an application for labor certification, was an “exceptional

circumstance” excusing his failure to depart voluntarily. The government opposed

Sidhwani’s motion, arguing that it was untimely and filed for no reason other than

to frustrate his removal, and that adjustment of status relief was speculative

because Sidhwani’s I-140 petition was merely pending.2 The government also

argued that Sidhwani had no regard for U.S. immigration laws, because he had

       1
          Although the record is unclear, it appears that Sidhwani may have again requested a
continuance at the hearing on January 29, 2004, because he then had an I-140 employment-based
visa petition pending. According to Sidhwani, the request was denied.
       2
       In an emergency motion for a stay of removal pending adjudication of the motion to reopen,
however, Sidhwani attached a document indicating that his I-140 petition had been approved.
                                               3
overstayed his original visa, engaged in unauthorized employment, failed to post a

bond, and stayed beyond his voluntary departure date.

      The IJ issued a written order denying the motion to reopen, explaining that:

(1) Sidhwani’s motion to reopen was filed beyond the 90-day deadline for such

motions, see 8 C.F.R. § 1003.23(b)(1); (2) Sidhwani had failed to leave the United

States voluntarily by his departure date, and was therefore ineligible for adjustment

of status relief for 10 years, see 8 U.S.C. § 1229c(d)(1)(B); In re Shaar, 21 I. & N.

Dec. 541 (BIA 1996) (en banc); (3) the government opposed the motion to reopen;

and (4) Sidhwani had failed to present exceptional circumstances warranting relief,

see In re J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997) (en banc). Although Sidhwani

invoked In re Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002) (en banc)

(explaining that a motion to reopen to apply for adjustment of status, pending

approval of an I-130 visa petition, may be granted provided that certain criteria are

met), the IJ distinguished Velarde-Pacheco on the grounds that the motion to

reopen in that case was timely filed, and the case involved an adjustment of status

based on marriage, not employment.

      Sidhwani appealed to the BIA, arguing that the IJ erred in denying his

motions for a continuance and to reopen, because: (1) Sidhwani had demonstrated

a prima facie case for relief; (2) INA § 245(i) allows the beneficiary of an

immigrant visa petition or labor certification application filed before April 30,
                                           4
2001, to apply for an adjustment of status without leaving the United States;

(3) Velarde-Pacheco shows that removal proceedings can be reopened where an

alien shows he is eligible for an adjustment of status; and (4) under Azarte v.

Ashcroft, 394 F.3d 1278 (9th Cir. 2005), the voluntary departure period can be

tolled while a motion to reopen is pending. On November 2, 2005, the BIA

dismissed Sidhwani’s appeal for several reasons. First, the BIA found that it

lacked jurisdiction to consider Sidhwani’s appeal regarding the IJ’s denial of his

motion for a continuance, because Sidhwani had failed to appeal that decision.

Second, the BIA declined to apply Azarte outside the Ninth Circuit, and noted that,

unlike the petitioner in Azarte, Sidhwani had not filed his motion to reopen during

his voluntary departure period. See Azarte, 394 F.3d at 1289. Finally, the BIA

stated it would not address Sidhwani’s claim that Velarde-Pacheco should extend

beyond family-based visa petitions to labor-based visa petitions. The IJ’s denial of

Sidhwani’s motion to reopen, the BIA concluded, was appropriate.

      Several weeks later, Sidhwani filed with the BIA a motion to reconsider the

BIA’s decision affirming the denial of Sidhwani’s motion to reopen. He argued

that the BIA had erred in refusing to address his claim that Velarde-Pacheco

should apply to labor-based visa petitions, and in declining to apply Azarte without

sufficient explanation. Sidhwani emphasized that the record contained no evidence

that he was admonished by an IJ for failing to depart voluntarily, and requested
                                          5
that the BIA “exercise its equitable tolling power and reinstate the voluntary

departure or extend it pursuant to its regulatory and statutory power . . . .” The

BIA denied the motion to reconsider, stating that Sidhwani’s motion to reopen had

been found untimely filed by the IJ, and that under Eleventh Circuit law, the filing

deadline for a motion to reopen under 8 C.F.R. § 1003.2(c)(2) is mandatory and

jurisdictional. See Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1150 (11th Cir. 2005)

(per curiam). The BIA also reaffirmed its earlier refusal to apply Azarte, and stated

that it (the BIA) had “no authority to grant extensions of voluntary departure,”

citing 8 C.F.R. § 1240.57. Sidhwani now petitions for review of the BIA’s

decisions affirming the denial of his motion to reopen and denying his motion to

reconsider.

                                          II.

      On appeal, Sidhwani contends that the BIA erred because: (1) the BIA

should have considered INA § 245(i) an exception to the 90-day time limit on the

filing of motions to reopen; (2) the BIA should have remanded the case for a

factual determination on whether it presented extraordinary circumstances

warranting reopening; and (3) the BIA’s refusal to reopen Sidhwani’s case

deprived him of due process.

      “We review only the [BIA’s] decision, except to the extent that it expressly

adopts the IJ’s opinion.” Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
                                           6
We review the denial of motions to reopen and for reconsideration for an abuse of

discretion. Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (per curiam)

(motion to reopen); Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1340-41 (11th Cir.

2003) (motion to reconsider). “Our review is limited to determining whether there

has been an exercise of administrative discretion and whether the matter of

exercise has been arbitrary or capricious.” Abdi, 430 F.3d at 1149 (internal quotes

and citation omitted). To the extent Sidhwani claims the BIA’s actions deprived

him of due process, however, our review is de novo. See Ali, 443 F.3d at 808.

      “Motions to reopen are disfavored, especially in a removal proceeding,

where, as a general matter, every delay works to the advantage of a deportable

alien who wishes merely to remain in the United States.” Abdi, 430 F.3d at 1149

(internal quotes and citation omitted). An alien may file one motion to reopen

removal proceedings, and that motion “shall state the new facts that will be proven

at a hearing to be held if the motion is granted, and shall be supported by affidavits

or other evidentiary material.” 8 U.S.C. § 1229a(c)(6)(A), (B) (2004); id. §

1229a(c)(7)(A), (B) (2005). Subject to certain exceptions set forth in the statute

and regulations, “the motion to reopen shall be filed within 90 days of the date of

entry of a final administrative order of removal.” Id. § 1229a(c)(6)(C)(i) (2004);

id. § 1229a(c)(7)(C)(i) (2005); see also 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)

(2005). As for a motion to reconsider filed with the BIA, it must, inter alia,
                                           7
“specify the errors of law or fact in the previous order” and “be supported by

pertinent authority.” 8 U.S.C. § 1229a(c)(6)(C) (2005); see also 8 C.F.R. §

1003.2(b)(1) (2005).

      In the instant case, the record indicates that the IJ, when granting Sidhwani’s

request for voluntary departure with a deadline of March 29, 2004, also entered an

alternate order of removal to Pakistan. See 8 C.F.R. § 1240.26(d) (2004).

Sidhwani does not dispute that this order of removal became final upon the

overstay of his voluntary departure period. See id. § 241.1(f) (2004), id. §

1241.1(f) (2005). Nor does he dispute that he filed his motion to reopen far outside

the 90-day limit, on March 9, 2005, and that the motion does not fall within any

listed exception. Rather, Sidhwani contends that the 90-day limitation should not

apply because his failure to depart was not “voluntary,” and was merely due to the

fact that he seeking to achieve an adjustment of status under INA § 245(i), 8

U.S.C. § 1255(i). He notes that the Ninth and Second Circuits have applied

equitable tolling to the 90-day limit on filing a motion to reopen before the BIA.

See Socop-Gonzales v. INS, 272 F.3d 1176, 1190 (9th Cir. 2001) (en banc) (“[W]e

conclude that the filing deadline for motions to reopen is subject to equitable

tolling.”); Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000) (“Because there is no

evidence that Congress intended to enact a jurisdictional bar to untimely motions

to reopen, the limitations period for such motions may be equitably tolled to
                                          8
accommodate claims of ineffective assistance of counsel.”). In Abdi, however, this

Circuit held that the BIA did not abuse its discretion when it denied a petitioner’s

untimely motion to reopen, because the 90-day limit was “mandatory and

jurisdictional, and . . . not subject to equitable tolling.” 430 F.3d at 1150. Indeed,

the BIA recognized as much in its opinion denying Sidhwani’s motion to

reconsider the decision affirming the IJ’s denial of his motion to reopen. Although

Sidhwani also claims that his case presents “exceptional circumstances,” he

concedes that the Illegal Immigration Reform and Immigrant Responsibility Act of

1996 (“IIRIRA”), which is applicable to his case, eliminated that exception to the

imposition of certain penalties on an alien who overstays his voluntary departure

deadline. See 8 U.S.C. § 1229c(d) (describing civil penalties imposed on an alien

who fails to depart voluntarily by his deadline); Ugokwe v. U.S. Att’y Gen., 11th

Cir. 2006, __ F.3d at __ n.5, slip op. at 2843 n.5 (No. 05-15237, June 28, 2006)

(“IIRIRA specifically excised statutory language in the INA that stated that ‘any

alien allowed to depart voluntarily . . . who remains in the United States after the

scheduled date of departure, other than because of exceptional circumstances, shall

not be eligible for . . . relief . . . .’”) (quoting 8 U.S.C. § 1252b(e)(2)(A) (1994)).3

       3
         Sidhwani further claims that the provisions of 8 U.S.C. § 1255(i), which authorize an
adjustment of status for certain aliens physically present in the United States, “trump” the penalties
imposed under§ 1229c(d), including a 10-year period of ineligibility for relief. We need not reach
the merits of this claim, because the untimeliness of Sidhwani’s motion to reopen provides sufficient
support for the BIA’s decisions affirming the IJ and denying Sidhwani’s motion for reconsideration.
Notably, Ugokwe holds that “the timely filing of a motion to reopen tolls the period of voluntary
                                                   9
Given our holding in Abdi, the BIA did not abuse its discretion when, in the course

of affirming the IJ’s denial of Sidhwani’s motion to reopen, and denying his

motion to reconsider, the BIA did not toll the 90-day limit on a motion to reopen.

       Sidhwani also contends that the BIA should have remanded his case for a

factual determination on whether his case presented “extraordinary circumstances”

warranting reopening, because regulations state that the BIA “will not engage in

factfinding in the course of deciding appeals.” 8 C.F.R. § 1003.1(d)(3)(iv).

Sidhwani does not identify the alleged “factfinding” of which he complains,

however, and this argument therefore fails to persuade.4

       Finally, Sidhwani claims that the BIA violated his due process rights by

failing to address why the 90-day time limit on motions to reopen should not be

equitably tolled, in that he “could not help that his case was approved” after the 90-

day limit on the filing of a motion to reopen had passed. As explained above,

however, the BIA noted in its opinion denying Sidhwani’s motion to reconsider

that the deadline for filing a motion to reopen is “mandatory and jurisdictional,”



departure pending the resolution of the motion to reopen.” __ F.3d at __, slip op. at 2846 (emphasis
added). Unlike the petitioner in Ugokwe, Sidhwani did not file a timely motion to reopen.
       4
         Sidhwani further asserts that a three-member BIA panel should have convened to decide
the appeal on his motion to reopen (which was disposed of by a single BIA member), but does not
explain why. We reject this conclusory assertion, and note we have previously held that “under the
regulations, no entitlement to a full opinion by the BIA exists.” Lonyem v. U.S. Att’y Gen., 352 F.3d
1338, 1342 (11th Cir. 2003) (per curiam); see 8 C.F.R. § 1003.1(e)(5).

                                                 10
thereby indicating that equitable tolling was unavailable. See Abdi, 430 F.3d at

1150. Even if the BIA had not done so, Sidhwani still would not have established

a due process violation. “To establish due process violations in removal

proceedings, aliens must show that they were deprived of liberty without due

process of law, and that the asserted errors caused them substantial prejudice.”

Lonyem, 352 F.3d at 1341-42. Generally, an IJ and the BIA have discretion to

grant or deny a motion to reopen–and may deny the motion even if the moving

party has made a prima facie case for relief. See 8 C.F.R. §§ 1003.2(a);

1003.23(b)(3).5 Similarly, the decision to adjust an alien’s status ultimately lies

within the discretion of the Attorney General. See 8 U.S.C. § 1255(a). “[T]he

failure to receive relief that is purely discretionary in nature does not amount to

deprivation of a liberty interest.” Garcia v. Att’y Gen., 329 F.3d 1217, 1224 (11th

Cir. 2003) (per curiam).

                                            III.

       Sidhwani filed his motion to reopen after the mandatory and jurisdictional

90-day time limitation for doing so had expired, and he did not demonstrate in his

motion for reconsideration that the BIA had committed an error of law or fact in

affirming the IJ’s denial of his motion to reopen. Thus, the BIA did not abuse its



       5
          Likewise, the decision to grant or deny a motion to reconsider is within the BIA’s
discretion. 8 C.F.R. § 1003.2(a).
                                              11
discretion in affirming the IJ’s decision denying Sidhwani’s motion to reopen, or in

denying his subsequent motion for reconsideration. Nor did the BIA’s actions

deprive Sidhwani of due process. Accordingly, we deny his petitions.

      PETITIONS DENIED.




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