                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________  ELEVENTH CIRCUIT
                                                       MAR 14, 2007
                                                    THOMAS K. KAHN
                               No. 06-14709
                                                         CLERK
                            Non-Argument Calendar
                          ________________________

                            Agency No. A73-578-132

RU CHENG ZHANG,

                                                                       Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                          ________________________

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

                                (March 14, 2007)

Before TJOFLAT, CARNES and HULL, Circuit Judges.

PER CURIAM:

      Ru Cheng Zhang, a native and citizen of China, petitions for review of the

BIA’s dismissal of his appeal from the IJ’s denial of his motion to reopen. Zhang
arrived in the United States on August 4, 1994. That same year he filed an asylum

application, claiming he had been persecuted in China because of his religious

beliefs. In 1997, Zhang withdrew his asylum application with prejudice and was

granted voluntary departure. However, he failed to leave the country and filed a

motion to reopen his deportation proceedings in 1999, seeking withholding of

deportation because he was now married and he and his wife were expecting their

first child, in violation of Chinese family planning policies. The IJ granted the

motion to reopen as to the prospective family planning claim.

      An asylum hearing was held on April 1, 2005, and the IJ informed Zhang

that he should file an application for cancellation of removal by a certain date and

instructed him to appear for an individual hearing on June 2, 2006. The deadline

for filing the application for cancellation was not set out in the written order and

we do not have a transcript of the hearing. Zhang claims that he thought he had

until the end of August to file an application; the government claims the filing

deadline was August 1, 2005. Regardless, on August 5, 2005, the IJ dismissed

Zhang’s case because he had failed to file an application for cancellation of

removal and had no pending applications before the immigration court. Zhang

failed to appeal that dismissal.

      But on October 31, 2005, Zhang filed a motion to reopen, claiming that (1)

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medical problems prevented him from timely filing an application for cancellation

of removal; (2) he believed that the application was not due until the end of

August; and (3) he thought that his original asylum application was still pending.

Zhang sought relief, arguing that he or his wife could face forced sterilization in

China because they had violated China’s family planning policies by having three

children. The IJ denied the motion, finding that no exceptional circumstances for

reopening the case existed and that Zhang did not qualify for cancellation of

removal under the INA. Zhang appealed to the BIA. The BIA dismissed his

appeal, finding that (1) Zhang’s challenge to the IJ’s August 5, 2005 decision was

untimely; and that (2) his claim that he never had a hearing on his previous asylum

application was without merit because he failed to diligently pursue that claim

after it was reopened in 1999 and has delayed for more than five years in filing an

application for relief from deportation. Zhang subsequently filed this appeal.

      Zhang now argues that the BIA erred in dismissing his appeal because the IJ

relied on the wrong legal standard (“exceptional circumstances for reopening”) in

its order denying his motion to reopen. He claims that he meets the applicable

“reasonable likelihood” standard because he and his wife are in violation of

Chinese policy. He also argues that his due process rights were violated because

(1) he did not receive notice of a deadline for filing an application for cancellation

                                          3
of removal; and (2) he was denied a full and fair hearing on his asylum claim.

      When the BIA issues a decision, we review only that decision, except to the

extent the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001). Here, the BIA issued its own decision, so we

consider only that decision.

      We review the BIA’s denial of a motion to reopen and a motion to

reconsider for abuse of discretion. Gbaya v. United States Att’y Gen., 342 F.3d

1219, 1220 (11th Cir. 2003) (addressing motions to reopen); Assa’ad v. United

States Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003) (addressing motions to

reconsider). The BIA abuses its discretion when it reaches its decision “in an

arbitrary or irrational manner.” Gomez-Gomez v. INS, 681 F.2d 1347, 1349 (11th

Cir. 1982). We review de novo constitutional challenges. Lonyem v. United

States Att’y Gen., 352 F.3d 1338, 1341 (11th Cir. 2003).

      If an alien fails to exhaust all administrative remedies available to him, we

lack jurisdiction to review the final order of removal. 8 U.S.C. § 1252(d)(1); Al

Najjar, 257 F.3d at 1283 n.12. We also “lack[] jurisdiction to consider a claim

which has not first been presented to the Board.” Asencio v. INS, 37 F.3d 614,

615–16 (11th Cir. 1994). However, we retain jurisdiction to review constitutional

issues. 8 U.S.C. § 1252(a)(2)(D).

                                         4
      Motions to reconsider and motions to reopen are generally disfavored,

especially in a removal proceeding, “where, as a general matter, every delay works

to the advantage of the deportable alien who wishes merely to remain in the

United States.” INS v. Doherty, 502 U.S. 314, 323, 112 S. Ct. 719, 724–25

(1992). A motion to reconsider must be filed within 30 days of the BIA’s final

decision, 8 C.F.R. § 1003.2(b)(2), and “shall state the reasons for the motion by

specifying the errors of fact or law in the prior [IJ or BIA] decision and shall be

supported by pertinent authority.” Id. § 1003.2(b)(1).

      When an alien is found removable and was present at the removal hearing, a

motion to reopen must be filed within 90 days of the IJ’s or BIA’s final decision.

8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). In a motion to reopen, the

petitioner must show (1) there is new evidence; and (2) that new evidence is

material, was unavailable, and could not have been discovered or presented at the

former hearing. See 8 C.F.R. § 1003.2(c)(1). Furthermore, a motion to reopen

may be granted only if the alien demonstrates that he is statutorily eligible for

relief. 8 C.F.R. § 1003.23(b)(3). To be statutorily eligible for the cancellation of

removal, a nonpermanent resident must (1) have been continuously and physically

present in the United States for at least ten years prior to filing the application; (2)

must have been a person of good moral character during those ten years; (3) must

                                           5
not have been convicted of certain offenses; and (4) must establish that “removal

would result in exceptional and extremely unusual hardship” to the alien’s spouse

or child who is a lawful citizen of the United States. 8 U.S.C. § 1229b(b)(1). For

purposes of determining whether an individual has been present in the United

States for ten years or more, “any period of continuous residence or continuous

physical presence in the United States shall be deemed to end . . . when the alien is

served a notice to appear under section 1229(a) of this title.” 8 U.S.C.

§ 1229b(d)(1).

      Because Zhang made arguments in his motion to reopen concerning whether

the IJ erred in dismissing his case, it appears that his motion was more akin to a

motion to reconsider than a motion to reopen. However, a motion to reconsider

must be filed within 30 days of the IJ’s order, and Zhang did not file his motion

until nearly three months after the IJ’s August 5, 2005 dismissal order. Therefore,

to the extent Zhang’s motion was actually a motion to reconsider, it was untimely,

and the BIA did not abuse its discretion in dismissing Zhang’s appeal.

      To the extent Zhang’s motion was a motion to reopen, the BIA did not err in

dismissing his appeal. Zhang is not entitled to reopening for two reasons. First,

Zhang failed to present material evidence that was unavailable and could not have

been discovered or presented at the removal hearing. We have held that a motion

                                          6
to reopen may be denied for the applicant’s failure to introduce evidence that was

material and previously unavailable. Al Najjar, 257 F.3d at 1302. Zhang claims

that the birth of his third child on October 30, 2005 constituted “new evidence”

that was unavailable at the time of his previous hearing. But Zhang filed an

affidavit with the IJ on March 18, 2005 indicating that his wife was pregnant with

their third child. Consequently, the evidence of the third child was before the IJ

when he issued his August 5, 2005 order and does not constitute “new” evidence

meriting reopening. Second, Zhang was not statutorily eligible for cancellation of

removal because he had not been present in the United States for ten years at the

time he was served with a notice to appear. Zhang came to the United States on

August 4, 1994, and the government served him with a notice to show cause in

1996. Therefore, Zhang was not eligible for cancellation of removal, and the BIA

did not abuse its discretion in dismissing Zhang’s appeal. We deny his petition as

to this issue.

       Finally, although Zhang argues that his due process rights were violated

when he did not receive notice of the deadline for filing an application for

cancellation of removal and when he was denied a full and fair asylum hearing, we

lack jurisdiction to consider these arguments because Zhang never appealed the

dismissal order from which these claims stem. See Sundar v. INS, 328 F.3d 1320,

                                          7
1323 (11th Cir. 2003) (“The rules are clear: before proceeding to federal court, an

alien must exhaust his or her administrative remedies.”). Accordingly, we dismiss

the petition as to this issue.

       PETITION DENIED IN PART, DISMISSED IN PART.




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