                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                               May 21, 2008
                            No. 07-15738                     THOMAS K. KAHN
                        Non-Argument Calendar                    CLERK
                      ________________________

                        Agency Nos. A79-471-365
                             A79-471-366

JUAN FERNANDO RODAS,
LUZ MARIETTA PINEDA,
MATEO RODAS,
JUANA RODAS,

                                                                   Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                  Respondent.


                      ________________________

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

                              (May 21, 2008)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
       Petitioners Juan Fernando Rodas and Luz Marietta Pineda, and their

children, Mateo Rodas and Juana Rodas (collectively “Petitioners”), through

counsel, seek review of the Board of Immigration Appeals’ (“BIA”) denial of their

motion to reopen their removal proceedings for being time-barred pursuant to

8 C.F.R. § 1003.2(c)(2). In their brief, Petitioners assert that the deadline for filing

their motion to reopen should have been equitably tolled because their appeal of

the Immigration Judge’s decision was dismissed due to ineffective assistance of

counsel, and they filed their motion to reopen within 90 days of discovering such

ineffective assistance. Petitioners also contend that the BIA’s denial of their

motion to reopen violated their right to due process.

       We review the BIA’s denial of a motion to reopen proceedings for abuse of

discretion.1 Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). This

review is limited to determining whether the BIA has exercised discretion and

whether “the matter of exercise has been arbitrary or capricious.” Id. (quotation

omitted).

       An alien may file a motion to reopen if the motion states new facts that

would be proven at a hearing and if those facts are supported by affidavits or other

evidence. 8 U.S.C. § 1229a(c)(7)(A), (B); 8 C.F.R. § 1003.2(c)(1). A motion to



       1
         The decision to grant or deny a motion to reopen is within the discretion of the BIA. 8
C.F.R. § 1003.2(a).
                                               2
reopen “must be filed no later than 90 days after the date on which the final

administrative decision was rendered in the proceeding sought to be reopened.”

8 C.F.R § 1003.2(c)(2).2 In Abdi, we considered whether the alien’s motion to

reopen based on ineffective assistance of counsel, filed after the 90-day deadline in

8 C.F.R. § 1003.2(c)(2), could be equitably tolled. 430 F.3d at 1148-49. We

concluded that the 90-day filing deadline is “mandatory and jurisdictional, and,

therefore, it is not subject to equitable tolling.” Id. at 1150.

       Having reviewed the record in this case, we conclude that the BIA did not

abuse its discretion by denying Petitioners’ motion to reopen as time-barred; nor

did the BIA deny Petitioners due process of law.

       PETITION DENIED.




       2
         The regulations provide for four statutory exceptions to the 90-day filing deadline, but
these exceptions are not at issue or relevant here. See 8 C.F.R § 1003.2(c)(3).
                                                  3
