                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 16-3673
                                     _____________

                              MIRIAM MWILA TURNBO,
                                               Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                          Respondent
                            _____________

                       On Petition for Review of a Decision of the
                            Board of Immigration Appeals
                                 BIA No. A087-230-788

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    April 3, 2017

             Before: CHAGARES, SCIRICA, and FISHER, Circuit Judges.

                                  (Filed: April 11, 2017)
                                      ____________

                                        OPINION*
                                      ____________


CHAGARES, Circuit Judge.

       Petitioner Miriam Mwila Turnbo seeks review of the August 26, 2016 decision of

the Board of Immigration Appeals (“BIA”), which denied her motion for reconsideration

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
of an April 27, 2016 BIA decision denying a motion to reopen. We will deny the petition

for review.

                                             I.

       Turnbo is a citizen of Zambia and entered the United States on a student visa on

January 15, 1998. She became a lawful permanent resident on January 15, 2009, and the

adjustment of status was based on her marriage to John L. Turnbo, a United States

citizen. On May 21, 2012, she pled guilty to two offenses in violation of the

Pennsylvania Controlled Substances Act: possession with intent to distribute cocaine in

violation of 35 Pa. Cons. Stat. § 780-113(a)(30) and criminal conspiracy to commit

possession with intent to distribute cocaine in violation of 18 Pa. Cons. Stat. § 903(c).

Turnbo entered removal proceedings on August 10, 2012, and her removability was

based on her status as an alien convicted of: (1) an aggravated drug trafficking felony

under 8 U.S.C. § 1101(a)(43)(B), (2) an aggravated felony conspiracy under 8 U.S.C. §

1101(a)(43)(U), and (3) a controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i).

       Turnbo was represented by counsel at her removal hearing before an immigration

judge (“IJ”) and conceded removability on the above three bases. She also acknowledged

that she was not seeking any other basis of relief. On November 21, 2013, the IJ issued

an order to remove Turnbo. Turnbo filed an appeal with the BIA, which denied the

appeal on March 31, 2015.

       Turnbo filed a motion to reopen on June 18, 2015. In that motion, where she was

represented by new counsel, Turnbo advanced two arguments. First, she stated that she

had a pending Form I-130 Petition for Alien Relative and Application to adjust status.

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Second, she argued that she was eligible for a waiver of removal under section 212(h) of

the Immigration and Naturalization Act, 8 U.S.C. § 1182(h). The BIA denied this motion

to reopen on April 27, 2016. Joint Appendix (“J.A.”) 17. It rejected the motion based on

adjustment of status because Turnbo had failed to submit required evidence supporting

the bona-fide nature of her marriage that constituted the basis for the adjustment of status.

J.A. 17. The BIA also rejected Turnbo’s argument that she qualifies for a waiver of

inadmissibility under section 212(h) because the provision only pertains to individuals

who have committed “a single offense of simple possession of 30 grams or less of

marijuana,” whereas Turnbo was convicted of possession with intent to distribute

cocaine. J.A. 18.

       Turnbo filed a motion to reconsider the BIA’s April 27, 2016 decision. She

continued to argue that she was eligible for a waiver under section 212(h). Moreover, she

contended that her convictions were not aggravated felonies under 8 U.S.C.

§ 1101(a)(43)(B) and § 1101(a)(43)(U). Finally, she argued that her prior counsel, who

represented her in front of the IJ, was ineffective and that as a result, she should not be

bound by the concession of inadmissibility made by that counsel.1 The BIA denied this

motion on August 26, 2016. J.A. 13-14. It noted that Turnbo’s continued assertion that

she is eligible for a waiver under section 212(h) is erroneous and that she failed to

identify any material error of fact in the BIA’s April 27, 2016 decision on this issue. It

rejected her ineffective assistance of counsel claim because she failed to raise it in her

1
 Turnbo did not seek reconsideration of the BIA’s determination that she has not met her
burden in showing that her marriage is bona fide.

                                              3
first motion to reopen and because to the extent she is attempting to file a second motion

to reopen, such a motion would be time- and number-barred. It concluded by noting that

Turnbo also has not met the requirements for equitable tolling of her ineffective

assistance claim. J.A. 14.

       Turnbo timely filed a petition for review of the BIA’s August 26, 2016 decision.

                                             II.

       The BIA has jurisdiction to review motions to reopen and motions for

reconsideration pursuant to 8 C.F.R. § 1003.2. We have jurisdiction over a timely filed

petition for review under 8 U.S.C. §§ 1252(a)(1) & (b)(1). “We review a BIA denial of a

motion to reconsider for abuse of discretion.” Castro v. Attorney Gen. of U.S., 671 F.3d

356, 364–65 (3d Cir. 2012).2 The BIA abuses its discretion when its actions are

“arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.

2004), as amended (Dec. 3, 2004) (quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir.

1994)). However, we review constitutional claims and questions of law, including claims

for ineffective assistance of counsel, de novo. Fadiga v. Att’y Gen., 488 F.3d 142, 153

(3d Cir. 2007).

                                            III.



2
 Although we only review the BIA’s August 26, 2016 order denying Turnbo’s motion
for reconsideration, “‘[b]y its very nature, a motion for reconsideration alleges defects of
some sort in the underlying decision by the BIA,’ such that judicial review of the denial
of a motion for reconsideration ‘ordinarily requires some review of the underlying
decision.’” Castro v. Attorney Gen. of U.S., 671 F.3d 356, 364–65 (3d Cir. 2012)
(quoting Esenwah v. Ashcroft, 378 F.3d 763, 765 (8th Cir. 2004)).

                                             4
       The BIA did not abuse its discretion in denying Turnbo’s motion for

reconsideration. The motion did not conform to the requirements of 8 C.F.R. § 1003.2

(b)(1), as it did not specify any errors of law or fact in the April 27, 2016 BIA decision.

Turnbo merely reiterated her argument that she is subject to a waiver of inadmissibility

under section 212(h), which the BIA rejected in its April 27, 2016 decision. What she

did not do, however, is identify any error in the BIA’s conclusion that because her

offenses were for possession with intent to distribute cocaine, not simple possession of 30

grams or less of marijuana, she is not entitled to a waiver.

       Turnbo also reiterated the argument that her convictions do not qualify as

aggravated felonies. But in its April 27, 2016 decision, the BIA did not and needed not

make any conclusion regarding this issue because Turnbo never challenged her status as

an alien convicted of a controlled substance offense, pursuant to 8 U.S.C §

1227(a)(2)(B)(i). This status renders her inadmissible, see 8 U.S.C. §

1182(a)(2)(A)(i)(II), and ineligible for an adjustment of status, see 8 U.S.C. § 1255(a),

regardless of whether she was also inadmissible as an alien having been convicted of

aggravated felonies.3




3
 Turnbo also argues in this petition that the BIA’s denial of her motion to reconsider
prevented her from seeking cancellation of removal based on hardship to her three United
States citizen children, two of whom suffer from learning disabilities. However, Turnbo
never requested cancellation of her order of removal in either her motion to reopen or her
motion for reconsideration. Therefore, her request for relief is not properly before us.

                                              5
       Turnbo’s ineffective assistance of counsel claim also fails. The BIA properly

denied this motion to reopen as time- and number-barred.4 A motion to reopen, which

must be based on new facts that could not have been presented previously, must be filed

not later than 90 days of the final agency decision. 8 C.F.R. § 1003.2(c)(1)-(2).

Moreover, an applicant can only file one motion to reopen, absent special circumstances.

Id. Turnbo, who filed this motion nearly a year late and as a second successive motion to

reopen, has not met these procedural requirements. Nor is equitable tolling available, as

such an applicant must show due diligence “over the entire period for which tolling is

desired.” Alzaarir v. Attorney Gen. of U.S., 639 F.3d 86, 90 (3d Cir. 2011). Turnbo

failed to argue before the BIA that she exercised due diligence, and the BIA concluded

that she is not eligible for equitable tolling. Turnbo’s new arguments regarding her

alleged “reasonable diligence” is beyond our jurisdiction as she did not raise them before

the BIA. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only

if . . . the alien has exhausted all administrative remedies available to the alien as of

right.”).




4
  Turnbo is incorrect to assert that her ineffective assistance claim was a motion for
reconsideration rather than a motion to reopen. She first brought this claim before the
BIA on May 13, 2016, after her initial motion to reopen, which was denied on April 27,
2016. Turnbo could not have asked the BIA to reconsider an issue that she had not
previously raised.
                                               6
                                         IV.

      For the foregoing reasons, we will deny Turnbo’s petition for review of the BIA

order dated August 26, 2016.




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