     Case: 11-60790     Document: 00511939707         Page: 1     Date Filed: 07/31/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 31, 2012
                                     No. 11-60790
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

CARLOS GABRIEL MARTELL-GARCIA,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A076 909 747


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Carlos Gabriel Martell-Garcia, a citizen of Mexico, petitions for review of
an order of the Board of Immigration Appeals (BIA) denying his motion to
reopen his removal proceedings on the basis that the motion was untimely.
        We review the BIA’s denial of a motion to reopen for abuse of discretion
and its factual findings for substantial evidence. Panjwani v. Gonzales, 401 F.3d
626, 632 (5th Cir. 2005). The BIA’s decision is “conclusive unless manifestly
contrary to law and an abuse of discretion.” Id. (internal quotation marks and

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-60790

citation omitted). The BIA’s ruling will stand “so long as it is not capricious,
racially invidious, utterly without foundation in the evidence, or otherwise so
irrational that it is arbitrary rather than the result of any perceptible rational
approach.” Zhao v. Gonzales, 404 F.3d 295, 304 (5th Cir. 2005) (internal
quotation marks and citation omitted).
      Martell-Garcia has not established that the BIA abused its discretion. His
argument that the motion to reopen was timely rests on his assertion that he
filed the motion in March 2010 while his pro se motion for reconsideration was
pending.   The BIA, however, determined that its records contained “no
indication” that it received the motion at that time, and the record before us is
devoid of evidence supporting Martell-Garcia’s assertion.
      Moreover, even if Martell-Garcia had filed the motion to reopen in March
2010 as he alleged, it is still untimely. It was well beyond the 90-day window for
filing a motion to reopen the BIA’s October 14, 2009, decision. See 8 U.S.C.
§ 1229a(c)(7)(C)(i). Though Martell-Garcia relies on Wang v. Ashcroft, 260 F.3d
448 (5th Cir. 2001), to support his argument that the BIA should have construed
the motion to reopen as an amendment to his pending motion to reconsider, that
case is inapposite.    There, we suggested that in certain circumstances, a
subsequent motion to reopen may be construed as an amendment to a pending
motion to reopen. Wang, 260 F.3d at 452. However, a motion to reopen and a
motion to reconsider are distinct motions with different purposes and filing
requirements. See 8 U.S.C. § 1229a(c)(6)(B),(C), (7)(B), (C)(i); Ramos-Bonilla v.
Mukasey, 543 F.3d 216, 219 n.3 (5th Cir. 2008). Indeed, where a motion to
reconsider was pending and an alien filed a “supplemental” submission seeking
to reopen proceedings raising a new claim for relief, we have determined that the
BIA did not abuse its discretion in characterizing the supplement as a separate
motion to reopen. Lara v. Trominski, 216 F.3d 487, 499 n.13 (5th Cir. 2000).
Likewise, the BIA did not abuse its discretion here in declining to construe the



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                                 No. 11-60790

motion to reopen, which sought to raise a new claim for relief, as an amendment
to the pending motion to reconsider.
      Martell-Garcia also argues that the time for filing the motion to reopen
should be equitably tolled on the basis that his counsel rendered ineffective
assistance and that he is eligible for adjustment of status. These arguments
amount to contentions that the BIA should have exercised its discretion to
reopen the removal proceedings sua sponte. See Ramos-Bonilla, 543 F.3d at 220.
We lack jurisdiction to review the BIA’s decision to decline to do so. See id. at
219-20.
      Accordingly, Martell-Garcia’s petition for review is DENIED IN PART and
DISMISSED IN PART for lack of jurisdiction.




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