                                                                            FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS                 August 18, 2009
                               FOR THE TENTH CIRCUIT             Elisabeth A. Shumaker
                                                                     Clerk of Court


    JUAN TALAMANTES-ROJO;
    ASUNCION ROMERO-NUNEZ,

                Petitioners,                            No. 08-9585
                                                    (Petition for Review)
    v.

    ERIC H. HOLDER, JR., *
    United States Attorney General,

                Respondent.


                               ORDER AND JUDGMENT **


Before TACHA, PORFILIO, and ANDERSON, Circuit Judges.



         Juan Talamantes-Rojo and Asuncion Romero-Nunez, natives and citizens of

Mexico, petition for review of an order of the Board of Immigration Appeals




*
     Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr., is substituted for
Michael B. Mukasey as the respondent in this appeal.
**
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(BIA or Board) denying their motion to reconsider. We dismiss the petition for

lack of jurisdiction.

                                 BACKGROUND

      Petitioners, who are married, entered the United States in 1991. In May

2006, during a merits hearing before an IJ, they filed applications for cancellation

of removal under 8 U.S.C. § 1229b(b)(1), claiming their removal “would result in

exceptional and extremely unusual hardship,” id. § 1229b(b)(1)(D), to their

United States-citizen son, James. A clinical psychologist testified during the

hearing and, as noted by the IJ, opined that “James has Attention Deficit and

Hyperactive Disorder . . . that may cause emotional damage and psychological

problems as [he] grows older.” Admin. R. at 143. The psychologist also stated,

again, as noted by the IJ, that James’s parents “would have difficulty locating

proper treatment for their son,” and that “treatment [in Mexico would] certainly

be beyond their financial means.” Id. 1 On December 22, 2006, the IJ denied

cancellation of removal because petitioners failed to sustain their burden of

showing exceptional and extremely unusual hardship to James. In so holding, the

IJ found the evidence was “not entirely consistent or compelling regarding the

severity of the child’s disorder” nor was it “conclusive regarding any treatment or


1
      We rely on the IJ’s observations because the administrative record does not
contain a transcript of the hearing. See Pet’rs Br. at 3 n.5 (explaining that
because petitioners did not timely appeal the IJ’s decision to the BIA, the BIA
“did not transcribe [the] proceedings before the IJ”).

                                        -2-
the intensity of any treatment which [he] may need in the future.” Id. at 144. The

IJ did, however, grant petitioners’ request for voluntary departure.

      Petitioners did not file a timely notice of appeal with the Board as required

by 8 C.F.R. § 1003.38(b). But on August 6, 2007, after retaining new counsel,

they filed an untimely notice of appeal and a motion urging the BIA to accept

their late appeal. Petitioners characterized this motion as a motion to reopen,

stating that it was brought pursuant to In re Lozada, 19 I. & N. Dec. 637, 638

(BIA 1988) (holding that ineffective assistance of counsel is a valid ground for

reopening when it prevented an alien “from reasonably presenting his case”). See

Chedid v. Holder, ___ F.3d ___, 2009 WL 2100615, at *5 n.4 (1st Cir. 2009)

(observing that the Lozada standard still governs). In the motion, petitioners

asserted that their former attorney’s performance was constitutionally ineffective.

Specifically, they claimed they were prejudiced by his failure to file a timely

notice of appeal with the Board and to marshal additional evidence, and that his

omissions rendered the proceedings fundamentally unfair. To remedy the

situation, they proposed, as best we can discern, that the BIA: accept the late

appeal under its certification authority, 8 C.F.R. § 1003.1(c); equitably toll the

90-day period applicable to motions to reopen 2 and reopen the proceedings,


2
      See Galvez Pineda v. Gonzales, 427 F.3d 833, 838 (10th Cir. 2005)
(observing that although a “motion to reopen removal proceedings (whether
before the Board or the Immigration Judge) . . . [shall] be filed no later than 90
                                                                        (continued...)

                                         -3-
id. § 1003.2(c); or sua sponte reopen the proceedings, id. § 1003.2(a). They also

sought a stay of removal and asked that their voluntary departure date be tolled.

      On April 23, 2008, the BIA declined to certify the appeal and dismissed it

as untimely under 8 C.F.R. § 1003.38(b) and (c). Specifically, the BIA held:

      [T]he appeal deadline [in § 1003.38(b)], which is jurisdictional, is
      not subject to equitable tolling. [3] Moreover, even if we were to take
      jurisdiction of this appeal by certification, the respondents have not
      established that their former counsel’s failure to timely appeal
      resulted in sufficient prejudice to warrant consideration of the appeal
      on the basis of ineffective assistance of counsel. The respondents do
      not appear to be statutorily eligible for cancellation of removal. In
      addition, the Department of Homeland Security extended the
      deadline for voluntary departure to September 28, 2007, which
      negated the prejudice caused by prior counsel’s failure to timely post
      the voluntary departure bond.

Admin. R. at 55 (citations and quotation omitted).

      Petitioners did not petition for judicial review of the BIA’s decision. But

they did file a timely motion to reconsider the April order. 4 In it, they asked the

BIA to reconsider its decision not to certify the appeal; in particular, they claimed



2
 (...continued)
days after the date on which the final administrative decision was rendered in the
proceeding sought to be reopened . . . [t]he 90-day period may be extended . . . by
equitable tolling” (citation and quotation omitted)).
3
      But see Huerta v. Gonzales, 443 F.3d 753, 755 (10th Cir. 2006) (holding
appeal deadline in § 1003.38(b) to be “mandatory but not jurisdictional”
(emphasis added)).
4
      A motion to reconsider is available to raise “errors of fact or law” in the
BIA’s prior decision and must be supported by “pertinent authority.” 8 C.F.R.
§ 1003.2(b)(1); see also 8 U.S.C. § 1229a(c)(6)(C).

                                         -4-
the BIA’s decision not to certify was erroneous because it was premised on a

faulty finding that petitioners were statutorily ineligible for cancellation of

removal, and that this finding yielded an incorrect determination that “counsel’s

error in not timely filing an appeal was harmless.” Id. at 17 (quotation omitted).

Next, they asserted that their “motion to reconsider . . . [was] timely and it may

very well also be equitably tolled under Tenth Circuit precedent.” Id. at 19

(citing Galvez Pineda, 427 F.3d at 838, and Riley v. INS, 310 F.3d 1253, 1258

(10th Cir. 2002) (holding that the 90-day regulatory deadline for filing a motion

to reopen may be equitably tolled)). 5 They also asserted that the BIA should sua

sponte reopen proceedings pursuant to 8 C.F.R. § 1003.2(a). Finally, petitioners

reiterated their request that the BIA toll their voluntary departure date.

      On November 21, 2008, the BIA denied petitioners’ motion to reconsider.

Specifically, the BIA held:

             We find no reason to disturb our prior decision. See 8 C.F.R.
      § 1003.2[(b)(1)]; see Matter of O-S-G-, 24 I & N Dec. 56
      (BIA 2006). . . . [T]he respondents do not, in their motion, dispute
      the fact that their appeal was filed 6 months late. Rather, [they]
      argue that the Board erred in its previous decision by stating that the
      respondents had failed to demonstrate prejudice because they do not
      appear to be statutorily eligible for cancellation of removal. We find
      any alleged error in this statement to be harmless, and continue to
      find that the respondents have not shown prejudice from any alleged


5
        This assertion makes little sense. Petitioners’ motion for reconsideration
was timely. Yet they argue that it should be equitably tolled, and in support, cite
authority holding that the deadline for filing a motion to reopen may be equitably
tolled.

                                          -5-
      ineffective assistance of counsel. The Immigration Judge determined
      that the respondents had failed to demonstrate that their departure
      would result in exceptional and extremely unusual hardship to a
      qualifying relative. The respondents’ arguments, in both their initial
      appeal and the pending motion, fail to persuade us to disturb that
      decision. Accordingly, the motion to reconsider is denied.

Admin. R. at 2 (citations omitted). This petition for review followed.

                                   DISCUSSION

      Much of petitioners’ appellate brief challenges the BIA’s April order

declining to certify their appeal and dismissing it as untimely. But petitioners

failed to file a petition for review from that decision within thirty days as required

by 8 U.S.C. § 1252(b)(1), and we therefore lack jurisdiction to review it.

Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004); Nahatchevska v.

Ashcroft, 317 F.3d 1226, 1227 (10th Cir. 2003) (per curiam).

      Thus, we turn to the BIA’s denial of petitioners’ motion to reconsider.

Generally we have jurisdiction to consider the denial of a motion to reconsider,

Infanzon, 386 F.3d at 1361; Desta v. Ashcroft, 329 F.3d 1179, 1183 (10th Cir.

2003), and review such a decision for an abuse of discretion, see Belay-Gebru v.

INS, 327 F.3d 998, 1000 n.5 (10th Cir. 2003). In this case however—as detailed

below—our jurisdiction is lacking.

      Petitioners argue that the BIA should have equitably tolled the regulatory

deadline for filing an appeal with the BIA. But we have no jurisdiction to

consider this argument because petitioners did not raise it in their motion to


                                         -6-
reconsider. See 8 U.S.C. § 1252(d)(1) (requiring exhaustion of administrative

remedies); Sidabutar v. Gonzales, 503 F.3d 1116, 1118 (10th Cir. 2007) (“[W]e

generally assert jurisdiction only over those arguments that a petitioner properly

presents to the BIA.”). We likewise are without jurisdiction to consider

petitioners’ argument, to the extent they make one, that the BIA abused its

discretion by not reconsidering its determination concerning DHS’s extension of

the deadline for voluntary departure. Again, this argument was not raised in their

motion to reconsider and it is therefore beyond our review. See id.

      Petitioners also argue that the BIA abused its discretion by denying

reconsideration of its prior determination not to certify their late appeal. But

because we cannot review the BIA’s decision not to certify the untimely appeal in

the first instance, Mahamat v. Gonzales, 430 F.3d 1281, 1284 (10th Cir. 2005),

we also cannot review the BIA’s decision denying reconsideration of that

determination, Infanzon, 386 F.3d at 1362 (“[W]here judicial review of the

underlying order is precluded[,] . . . denial of a subsequent motion to reopen [or

reconsider is] also precluded.”). Finally, in so far as petitioners claim the BIA

abused its discretion by not exercising its sua sponte authority pursuant to

8 C.F.R. § 1003.2(a), we are without jurisdiction to consider this claim as well.

Belay-Gebru, 327 F.3d at 1000-01 (observing that the “decision of the BIA

whether to invoke its sua sponte authority is committed to its unfettered

discretion” and is therefore “not subject to judicial review” (quotation omitted)).

                                         -7-
                          CONCLUSION

We DISMISS the petition for review for want of jurisdiction.



                                           Entered for the Court



                                           Deanell Reece Tacha
                                           Circuit Judge




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