           Case: 17-11962   Date Filed: 01/11/2018   Page: 1 of 5


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-11962
                        Non-Argument Calendar
                      ________________________

                        Agency No. A091-448-390



JESUS RICARDO VILLALOBOS,

                                                      Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                      Respondent.

                      ________________________

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

                            (January 11, 2018)

Before WILSON, JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Jesus Villalobos, a native and citizen of Mexico, seeks review of an order of

the Board of Immigration Appeals (“BIA”) denying his motion to reconsider its

initial decision, in which it concluded that he failed to qualify for relief under

former § 212(c) of the Immigration and Nationality Act (“INA”).1 For the reasons

that follow, we must dismiss Villalobos’s petition.

                                                I.

       Villalobos, who first entered the United States in 1979, was admitted as a

temporary resident in 1988. In February 1991, he was convicted of possession of

cocaine; he was convicted again of possession of cocaine in May 1991. Then, in

November 1991, he adjusted his status to that of a permanent resident. One year

later, he was convicted of the sale, purchase, or delivery of cocaine, as well as

possession of cocaine.

       Villalobos was later charged with removability. He conceded that he was

removable under INA § 237(a)(2)(B)(i), 2 but he requested a waiver under § 212(c).

The immigration judge (“IJ”) concluded that because Villalobos had been


       1
         Under § 212(c), “any permanent resident alien with a lawful unrelinquished domicile of
seven consecutive years [could] apply for a discretionary waiver from deportation.” I.N.S. v. St.
Cyr, 533 U.S. 289, 295 (2001) (internal quotation marks omitted). Congress repealed § 212(c) in
1996, but the Supreme Court has held that “§ 212(c) relief remains available” for noncitizens
“whose convictions were obtained through plea agreements and who, notwithstanding those
convictions, would have been eligible for § 212(c) relief at the time of their plea under the law
then in effect.” Id. at 326.
       2
         Under § 237(a)(2)(B)(i), any noncitizen who was convicted of a controlled substance
violation, “other than a single offense involving possession for one’s own use of 30 grams or less
of marijuana, is deportable.”
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convicted of cocaine possession in early 1991, his later status adjustment to

permanent resident was invalid. Because he had not been lawfully admitted for

permanent residence, the IJ concluded, Villalobos was ineligible for relief under

§ 212(c). Villalobos appealed to the BIA, who dismissed his appeal, concluding,

like the IJ, that Villalobos’s criminal convictions had prevented him from

becoming a lawful permanent resident, which was a prerequisite for § 212(c) relief.

       Villalobos did not appeal the BIA’s order to this Court. Instead, after the

time to file a motion to reconsider had expired, he moved the BIA to accept a late-

filed motion to reconsider its decision, which the BIA denied. 3 Villalobos then

renewed his motion to accept a late-filed motion to reconsider, filing it along with

the motion to reconsider.

       The BIA, considering the two motions in conjunction, determined that the

motion to reconsider had been filed out of time. It construed his renewed motion

to accept a late-filed motion to reconsider as arguing that his time for filing a

motion to reconsider should be equitably tolled, but concluded that his reason for

the untimely filing did not constitute an extraordinary circumstance, as required for

equitable tolling. The BIA also noted that a motion to reconsider must identify an

error of fact or law in the BIA’s prior decision; it concluded that the motion failed

to do so and that its earlier determination that Villalobos did not qualify for relief

       3
        Motions to reconsider “must be filed within 30 days of the date of entry of a final
administrative order of removal.” INA § 240(c)(6)(B).
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under § 212(c) was correct. Villalobos petitioned this Court for review, arguing

that BIA erred in concluding that he was ineligible for § 212(c) relief.

                                          II.

      We review de novo our subject matter jurisdiction. Butka v. U.S. Att’y Gen.,

827 F.3d 1278, 1282 n.4 (11th Cir. 2016). We lack jurisdiction to review a final

order of removal entered against a noncitizen because of a criminal conviction

covered in § 237(a)(2)(B), which includes certain controlled substance violations.

See INA § 242(a)(2)(C). This bar on our jurisdiction applies unless the petitioner

has presented a constitutional claim or question of law. Id. § 237(a)(2)(D).

      Here, the BIA concluded that Villalobos’s motion to reconsider was filed out

of time and that he failed to present sufficient evidence of an extraordinary

circumstance to justify equitable tolling. The BIA’s denial, therefore, was based

on a factual determination. Cf. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954,

957 (11th Cir. 2005) (“The timeliness of an asylum application is not a

constitutional claim or question of law . . . .”). We thus lack jurisdiction to review

this decision. Because the BIA’s determination that Villalobos’s motion to

reconsider was untimely is dispositive, we do not consider his argument that the

BIA erred in its conclusion that he was ineligible for § 212(c) relief.

                                         III.

      For these reasons, we dismiss Villalobos’s petition for lack of jurisdiction.


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DISMISSED.




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