                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 14-4109
                                   ________________

                              JOSE RAMIREZ BARAJAS,
                                               Petitioner

                                             v.

         ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
                                          Respondent
                         ________________

                       On Petition for Review of a Final Order
                         of the Board of Immigration Appeals
                    Immigration Judge: Honorable Steven A. Morley
                                 (No. A201-111-962)
                                  ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 19, 2015

            Before: AMBRO, HARDIMAN, and NYGAARD, Circuit Judges

                           (Opinion filed: December 10, 2015)

                                   ________________

                                       OPINION*
                                   ________________

AMBRO, Circuit Judge




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Jose Ramirez Barajas, a native and citizen of Mexico, petitions for review of the

decision by the Board of Immigration Appeals (“BIA”) denying his application for

withholding of removal and protection under the Convention Against Torture. For the

reasons that follow, we dismiss in part and deny in part his petition.

                                             I.

       On May 17, 2011, after Ramirez Barajas was convicted of driving under the

influence in violation of Pennsylvania law, the Department of Homeland Security filed a

Notice to Appear, charging that he was subject to removal from the United States.

Ramirez Barajas conceded that he was removable and applied for withholding of removal

and protection under the Convention Against Torture.

       After considering the testimony of Ramirez Barajas and other evidence, the

Immigration Judge denied Ramirez Barajas’s application for relief from removal. The

BIA affirmed the Immigration Judge’s decision on February 26, 2014. Ramirez Barajas

timely filed a motion to reconsider, which the BIA denied on September 11, 2014. On

October 8, 2014, Ramirez Barajas filed this petition for review.

                                             II.

       The Government argues that we lack jurisdiction to review the Immigration

Judge’s order or the BIA’s affirming order dated February 26, 2014 and that Ramirez

Barajas has waived any arguments with respect to the BIA’s order denying

reconsideration.

       We review questions of our own jurisdiction de novo. Higgs v. Att’y Gen., 655

F.3d 333, 337 (3d Cir. 2011). Petitions for review of BIA decisions “must be filed not

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later than 30 days after the date of the final order of removal.” 8 U.S.C. § 1252(b)(1).

This requirement is “jurisdictional in nature and must be construed with strict fidelity to

[its] terms.” Stone v. INS, 514 U.S. 386, 405 (1995). Filing a motion to reconsider does

not toll the 30-day period for seeking review of a BIA decision. Stone, 514 U.S. at 398-

99. Instead, “[a]n adverse BIA decision on the merits (and accompanying order of

removal) and a BIA order denying a motion to reconsider are ‘two separate final orders.’”

Castro v. Att’y Gen., 671 F.3d 356, 364 (3d Cir. 2012) (quoting Stone, 514 U.S. at 405).

When there are such separate final orders, we have jurisdiction to review only those

orders for which a timely petition for review has been filed. Stone, 514 U.S. at 405.

       Here, Ramirez Barajas filed his petition for review more than 30 days after the

BIA affirmed the Immigration Judge’s prior order denying his application for relief from

removal. Thus we lack jurisdiction over the petition insofar as it seeks review of those

decisions.

       As for the motion to reconsider, Ramirez Barajas filed his petition for review less

than 30 days after the BIA denied his motion; thus the timing of the petition does not

deprive us of jurisdiction to consider any challenge he might wish to raise regarding that

motion. But his opening brief does not mention the motion to reconsider, and “[a]n issue

is waived unless a party raises it in its opening brief.” Laborers’ Int’l Union of N. Am. v.

Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994) (quoting Simmons v. City

of Philadelphia, 947 F.2d 1042, 1066 (3d Cir. 1991) (plurality opinion)). As a result, any

challenge to the BIA’s decision denying the motion to reconsider is waived. See United

States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005).

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                            *      *      *       *         *   *

       The petition for review is timely only as to the BIA’s order denying Ramirez

Barajas’s motion to reconsider, and we need not decide whether that order was an abuse

of discretion because Ramirez Barajas waived any such challenge.1 We accordingly

dismiss in part and deny in part his petition for review.




1
 Even if Ramirez Barajas’s petition for review were timely or he had not waived any
challenge to the BIA’s denial of reconsideration, he would lose on the merits because the
BIA did not abuse its discretion. We have considered his arguments and find them
unpersuasive.
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