                                                                      [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________                  FILED
                                                                     U.S. COURT OF APPEALS
                                            No. 11-15480               ELEVENTH CIRCUIT
                                        Non-Argument Calendar              JUNE 12, 2012
                                      ________________________              JOHN LEY
                                                                             CLERK
                                           Agency No. A071-587-260


KAPILA WIJESIRI WIMALARATNE,

llllllllllllllllllllllllllllllllllllllll                                        Petitioner,

                                                   versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                                      Respondent.

                                     ________________________

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

                                               (June 12, 2012)

Before CARNES, WILSON and FAY, Circuit Judges.

PER CURIAM:

         Kapila Wimalaratne, a native and citizen of Sri Lanka, petitions for review

of the Board of Immigration Appeals’s (“BIA”) denial of his motion to reopen his
removal proceedings sua sponte pursuant to 8 C.F.R. § 1003.2(a). On appeal,

Wimalaratne first argues that we should allow equitable tolling of the 90-day

period for filing a motion to reopen where the motion raises a claim of ineffective

assistance of counsel. Second, he asserts that we have jurisdiction to review the

BIA’s decision not to exercise its sua sponte authority because he raised the

constitutional claim that he received ineffective assistance of counsel. For the

reasons set forth below, we deny the petition for review in part and dismiss the

petition for review in part.

                                         I.

      Wimalaratne filed an application for asylum with the Immigration and

Naturalization Service (“INS”) in 1991. In 1998, the INS referred Wimalaratne’s

application to an Immigration Judge (“IJ”) for a hearing. The INS also issued a

Notice to Appear to Wimalaratne, charging that he was removable under

Immigration and Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C.

§ 1227(a)(1)(B), as a nonimmigrant who remained in the United States for a time

longer than permitted.

      During his removal proceedings, Wimalaratne was represented by attorney

Mahinda Bogollagama. Wimalaratne’s individual hearing before an IJ was

scheduled for January 1999. The transcript of this hearing is not included in the

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administrative record, but it appears that Wimalaratne withdrew his asylum

application during the hearing and requested voluntary departure. The IJ issued an

order permitting Wimalaratne to voluntarily depart prior to May 21, 1999. In the

event that Wimalaratne failed to leave the country by that date, the IJ ordered that

he be removed to Sri Lanka.

      In January 2008, Wimalaratne, represented by new counsel, filed a motion

to reopen his removal proceedings. Wimalaratne acknowledged that his motion

had not been filed within the 90-day deadline for motions to reopen, but argued

that the IJ had the authority to sua sponte reopen the case based on exceptional

circumstances. He asserted that the exceptional-circumstances requirement was

met in his case because his former attorney, Bogollagama, had provided him with

ineffective assistance of counsel. Wimalaratne explained that he had intended to

proceed with his request for asylum at the removal hearing, but Bogollagama

incorrectly informed the IJ that he wanted to withdraw his asylum application and

plead for voluntary departure.

      Wimalaratne submitted an affidavit in support of his motion to reopen. He

explained that he left Sri Lanka to escape threats from a terrorist group. He had

hoped to return to Sri Lanka, but when the political situation in Sri Lanka

continued to deteriorate, he decided to apply for asylum in the United States. At

                                          3
the January 1999 hearing, however, Bogollagama told the IJ that Wimalaratne

wanted to withdraw his asylum application and apply for voluntary departure.

Wimalaratne did not want to embarrass his attorney, so he simply agreed with his

attorney’s statements when the IJ asked him whether he was withdrawing his

asylum application and seeking voluntary departure.

      The IJ denied Wimalaratne’s motion to reopen and declined to sua sponte

reopen Wimalaratne’s removal proceedings. The IJ explained that, if Wimalaratne

felt that he had received ineffective assistance of counsel, he had an obligation to

assert that claim within a reasonable period of time. Wimalaratne’s decision to

wait more than nine years to bring his ineffective-assistance claim was not

reasonable.

      Wimalaratne appealed to the BIA. The BIA adopted and affirmed the IJ’s

order denying Wimalaratne’s motion to reopen. The BIA observed that

Wimalaratne had not exercised due diligence in raising his claim of ineffective

assistance of counsel. Wimalaratne moved for reconsideration of the BIA’s order,

and the BIA denied Wimalaratne’s motion for reconsideration.

      Wimalaratne petitioned for review of the BIA’s denial of his motion for

reconsideration, and he asked us to remand the case to the BIA to allow him to

present new evidence regarding Bogollagama’s ineffective assistance.

                                          4
Wimalaratne v. U.S. Att’y Gen., 427 F. App’x 700, 701 (11th Cir. 2011). We

denied Wimalaratne’s petition for review. Id. at 705.

      On June 30, 2011, Wimalaratne filed a second, pro se motion to reopen his

case sua sponte. He argued that Bogollagama’s ineffective assistance was an

exceptional circumstance that warranted reopening the case, and that he had only

recently learned that Bogollagama’s assistance was ineffective. Additionally,

Wimalaratne asserted that he was denied due process because Bogollagama’s

ineffective assistance prevented him from seeking all available forms of relief

during his removal proceedings. Wimalaratne attached a declaration to his

motion, in which he stated that Bogollagama had helped Wimalaratne file his

asylum application in 1991. Later, when Wimalaratne was placed in removal

proceedings, Bogollagama withdrew the asylum application and insisted that

Wimalaratne request voluntary departure. Bogollagama did not inform

Wimalaratne of the consequences that would follow such a decision. Several

years later, after consulting a new lawyer, Wimalaratne learned that Bogollagama

had not signed the asylum application and that Bogollagama’s Virginia law license

had since been revoked. Wimalaratne also included a letter he sent to

Bogollagama in October 2010 seeking the return of Bogollagama’s fee due to the

ineffective assistance.

                                         5
      The BIA denied the motion to reopen, which was untimely and

numerically-barred under the INA. The BIA determined that the evidence

Wimalaratne had submitted with his motion did not warrant either equitable

tolling of the time limit or the exercise of its authority to reopen proceedings sua

sponte. Moreover, in the Eleventh Circuit, the time period for filing a motion to

reopen was not subject to equitable tolling, even where there was a claim of

ineffective assistance of counsel. The BIA also noted that, although Wimalaratne

seemed to meet the procedural requirements to raise a claim of ineffective

assistance of counsel, he had not pursued his claim with due diligence.

                                          II.

      When the denial of a motion to reopen is reviewable, it is reviewed for an

abuse of discretion. See Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.2 (11th

Cir. 2005). An alien must file a motion to reopen before the BIA within 90 days

of the date on which the final order of removal was rendered. INA

§ 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Even

where an alien has raised a claim of ineffective assistance of counsel, the 90-day

time limitation “is mandatory and jurisdictional, and, therefore, it is not subject to

equitable tolling.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1150, 1150 n.2 (11th

Cir. 2005). Finally, “we are bound by earlier panel holdings unless and until they

                                           6
are overruled en banc or by the Supreme Court.” Horowitch v. Diamond Aircraft

Indus., Inc., 645 F.3d 1254, 1258 (11th Cir. 2011) (quotation and alteration

omitted).

      The BIA did not err in finding that equitable tolling could not excuse the

untimely filing of Wimalaratne’s motion to reopen. Under Abdi, the 90-day time

period in which an alien must file a motion to reopen is “mandatory and

jurisdictional” and “not subject to equitable tolling.” 430 F.3d at 1150. We are

bound to apply this rule to Wimalaratne’s case because it has not been “overruled

en banc or by the Supreme Court.” Horowitch, 645 F.3d at 1258 (quotation

omitted). Accordingly, we deny Wimalaratne’s petition for review as it pertains to

the BIA’s finding regarding the inapplicability of equitable tolling.

                                         III.

      Constitutional challenges are reviewed de novo. Alhuay v. U.S. Att’y Gen.,

661 F.3d 534, 548 (11th Cir. 2011). The BIA may reopen a case “at any time” sua

sponte. 8 C.F.R. § 1003.2(a). There is no express statutory grant of authority to

reopen cases sua sponte. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293 (11th Cir.

2008). Rather, the authority derives from INA § 103(g)(2), 8 U.S.C. § 1103(g)(2),

a statute granting general authority to the Attorney General over immigration

matters. Lenis, 525 F.3d at 1293. Because there are no standards to govern the

                                          7
BIA’s exercise of its sua sponte discretion, we lack jurisdiction to review such a

decision. Id. at 1293-94. In Lenis, we noted without deciding that we might have

jurisdiction to review constitutional claims related to the denial of a motion to

reopen sua sponte. Id. at 1294 n.7. In a case in which INA § 242(a)(2)(D), 8

U.S.C. § 1252(a)(2)(D), provided us with jurisdiction to consider a constitutional

claim, we noted that we nonetheless “lack[ed] jurisdiction [w]here a constitutional

claim ha[d] no merit.” Alhuay, 661 F.3d at 548 n.15 (quotation omitted); see also

Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 (11th Cir. 2007).

      Aliens have the right to effective assistance of counsel during their removal

proceedings. Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1221 (11th Cir. 2003). To

establish ineffective assistance, the “alien must establish that his or her counsel’s

performance was deficient to the point that it impinged the fundamental fairness of

the hearing.” Id. (quotations omitted).

      Our jurisdiction over constitutional claims where the BIA has declined to

exercise its sua sponte authority to reopen removal proceedings appears to be an

open question. See Lenis, 525 F.3d at 1294 n.7. Nonetheless, we need not

determine whether we have jurisdiction in such cases generally because here, we

lack jurisdiction to consider Wimalaratne’s meritless constitutional claim. See

Alhuay, 661 F.3d at 548 n.15.

                                           8
      On appeal, Wimalaratne’s ineffective assistance argument focuses on two

points: (1) that Bogollagama did not file a notice of appearance with the 1991

asylum application, and (2) that Bogollagama withdrew Wimalaratne’s asylum

application in 1999 without properly advising Wimalaratne of the consequences of

that action. As to the first point, Wimalaratne does not explain how the lack of a

notice of appearance in 1991 actually affected his 1999 removal proceedings or

rendered them unfair. That the IJ did not know that Bogollagama played a role in

filing the original asylum application had no bearing on whether Wimalaratne

received a fundamentally fair removal hearing. See Gbaya, 342 F.3d at 1221.

      Wimalaratne also has not shown that Bogollagama’s advice in 1999

rendered his removal proceedings unfair. See Gbaya, 342 F.3d at 1221. Although

the transcript of the hearing before the IJ is not in the record, Wimalaratne stated

in an affidavit that, when the IJ asked him whether he wished to withdraw his

asylum application and seek voluntary departure, he agreed with Bogollagama’s

statement that he wished to take that course of action. Notwithstanding his

assertion that he did not want to embarrass Bogollagama, Wimalaratne was given

the opportunity during his removal hearing to inform the IJ that his attorney was

taking a course of action that they had not discussed or agreed to, but he chose not

to do so. Similarly, at that time, Wimalaratne could have informed the IJ that he

                                          9
was unaware of the meaning of voluntary departure and the effect that it would

have on his ability to remain in the United States. Because Wimalaratne had the

opportunity to inform the IJ that he would like to pursue his asylum application,

his removal proceedings were not rendered fundamentally unfair by his decision to

follow his attorney’s lead and withdraw that application and seek voluntary

departure. See Gbaya, 342 F.3d at 1221. Thus, Wimalaratne’s constitutional

claim has no merit, and we lack jurisdiction to consider the claim. See Alhuay,

661 F.3d at 548 n.15. Accordingly, we dismiss Wimalaratne’s petition for review

as it pertains to his constitutional claim.

      For the foregoing reasons, we deny the petition for review in part and

dismiss the petition for review in part.

      PETITION DENIED IN PART AND DISMISSED IN PART.




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