                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                               APRIL 24, 2007
                            No. 06-15056                     THOMAS K. KAHN
                        Non-Argument Calendar                     CLERK
                      ________________________

                          BIA No. A96-281-748

RAFAEL SOARES DA SILVA,


                                                         Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                         Respondent.


                      ________________________

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

                             (April 24, 2007)

Before BLACK, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
      Rafael Soares Da Silva, proceeding pro se, petitions for review of the order

of the Board of Immigration Appeals (BIA) that denied his “Motion to Reopen and

Reconsider” and the final order of the BIA that affirmed the denial of his

application for asylum and withholding of removal. See 8 U.S.C. §§ 1158, 1231; 8

C.F.R. § 208.16(c). We dismiss in part and deny in part his petition.

      On May 20, 2003, an immigration judge denied Da Silva’s application for

asylum as untimely and found Da Silva ineligible for withholding of removal. The

BIA affirmed without opinion. Da Silva petitioned this Court for review and

argued that his counsel was ineffective at his removal hearing, his untimely

application should have been considered, and he was eligible for withholding of

removal. We dismissed the appeal for lack of jurisdiction because Da Silva had

not presented these arguments to the BIA and because we lack jurisdiction to

review the refusal of the BIA to allow an untimely application for asylum. See Da

Silva v. Gonzales, No. 05-15301 (11th Cir. May 9, 2006).

      On November 9, 2005, while his first petition was pending in this Court, Da

Silva filed a motion to reopen his removal proceedings that raised ineffective

assistance of counsel and due process claims. The BIA denied the motion to

reopen on March 21, 2006. Da Silva did not petition this Court for review.

      On April 28, 2006, Da Silva filed pro se a second motion to reopen his

removal proceedings and a first motion to reconsider the March 21, 2006, decision
                                          2
not to reopen. The BIA denied this motion for failure to satisfy either the 90-day

period for a motion to reopen his removal proceedings or the 30-day deadline for a

motion to reconsider the March 21, 2006, order. The BIA alternatively concluded

that the second motion to reopen was number-barred or, if construed as a motion to

reconsider, that the motion did not raise factual or legal errors in the March 21,

2006, order. The BIA also declined to reopen Da Silva’s removal proceedings sua

sponte. Da Silva filed a petition for review in this Court in September 2006.

      Da Silva argues that the BIA erred in finding that he did not suffer past

persecution on account of a protected ground. Construed liberally, this appears to

be an argument that the BIA erred in affirming the immigration judge in its final

order of removal. The Attorney General argues that we do not have jurisdiction to

review the final order of the BIA, and we agree. A petition for review must be

filed within 30 days after the date of the final order of removal. 8 U.S.C.

§ 1252(b)(1). The order that denied Da Silva’s application for asylum and

withholding of removal issued on August 24, 2005. Da Silva filed the instant

petition for review in September 2006.

      Liberally construing Da Silva’s motion as a motion to reconsider the March

21, 2006, order, we conclude that the BIA did not abuse its discretion by denying

it. See Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). A

motion to reconsider must be filed within 30 days of the order, see 8 U.S.C.
                                           3
§ 1229a(c)(5); 8 C.F.R. § 1003.2(b)(2), and “shall specify the errors of law or fact

in the previous order and shall be supported by pertinent authority,” 8 U.S.C.

§ 1229a(c)(6)(C). Da Silva did not file a timely motion nor did he identify errors

of law in the denial of his previous motion to reopen.

      Da Silva argues that the BIA should have waived the number and time

limitations on his second motion to reopen. Ordinarily, only one motion to reopen

is allowed, and it must be filed within 90 days of the date of the final

administrative removal order. See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii); 8 C.F.R.

§ 1003.2(c)(2). Da Silva admits that his motion was untimely and that it was his

second motion to reopen. The BIA may allow an alien to file a supernumerical or

untimely motion to reopen in certain circumstances, see 8 U.S.C. § 1229a(c)(7)(C),

but Da Silva did not assert before the BIA, and does not now assert, an enumerated

exception to the time and number limitations.

      Instead, Da Silva argues that the deadline and numerical restrictions should

be equitably tolled because his attorney failed to inform him that the order of

removal was final, but we disagree. “Motions for reopening immigration

proceedings are disfavored . . . especially [] in a deportation proceeding, where . . .

every delay worked to the advantage of the deportable alien who wishes merely to

remain in the United States.” INS v. Doherty, 502 U.S. 314, 323, 123 S. Ct. 719,

724-25 (1992). “[T]he statutory 90-day period for filing a [motion to reopen] is
                                           4
mandatory and jurisdictional, and, therefore, it is not subject to equitable tolling.”

Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1150 (11th Cir. 2005). The BIA did not

abuse its discretion in denying Da Silva’s untimely and supernumerical motion to

reopen. Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003).

      Finally, the decision of the BIA not to allow sua sponte an untimely motion

to reopen is not reviewable by this Court. Anin v. Reno, 188 F.3d 1273, 1279

(11th Cir. 1999).

      PETITION DISMISSED IN PART and DENIED IN PART.




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