                                                               [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 09-11075                 ELEVENTH CIRCUIT
                                                            SEPTEMBER 22, 2009
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                          Agency No. A079-419-520

ELSA CRISTINA PASCO-RUIZ,


                                                                       Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.


                         ________________________

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

                             (September 22, 2009)

Before CARNES, BARKETT and FAY, Circuit Judges.

PER CURIAM:

     Elsa Cristina Pasco-Ruiz petitions through counsel for review of the Board
of Immigration Review’s (“BIA”) decision denying her motion to reopen her

removal proceedings. On appeal, Pasco-Ruiz argues that the BIA abused its

discretion by (1) denying the motion as untimely, (2) denying the motion based on

the BIA’s determination that the immigration judge (“IJ”) lacked jurisdiction to

adjust her status, and (3) failing to sua sponte reopen her case.

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

an abuse of discretion. Li v. U.S. Attorney Gen., 488 F.3d 1371, 1374 (11th Cir.

2007). We lack jurisdiction to review a final order of removal when the alien does

not file a petition for review in this Court within 30 days of the BIA’s decision. 8

U.S.C. § 1252(b)(1); Dakane v. U.S. Attorney Gen., 371 F.3d 771, 773 n.3 (11th

Cir. 2004). We also lack jurisdiction to review claims not raised before the BIA.

Amaya-Artunduaga v. U.S. Attorney Gen., 463 F.3d 1247, 1250-51 (11th Cir.

2006). Additionally, we lack jurisdiction to review the BIA’s decision to not sua

sponte reopen a case. Lenis v. U.S. Attorney Gen., 525 F.3d 1291, 1294 (11th Cir.

2008).

         Generally, an alien who is subject to a final order of removal must file a

motion to reopen within 90 days of the date when the removal order became final.

8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). An order of removal

entered in absentia, however, may be rescinded upon a motion to reopen filed

(1) within 180 days of the date of the order of removal if the alien establishes that
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her failure to appear was due to exceptional circumstances, or (2) at any time if the

alien did not receive proper notice of the hearing. 8 U.S.C. § 1229a(b)(5)(C).

      An arriving alien in removal proceedings generally must file an application

for adjustment of status with the U.S. Citizenship and Immigration Service

(“USCIS”) because an IJ lacks jurisdiction over an adjustment of status

application. 8 C.F.R. § 1245.2(a)(1)(ii); Scheerer v. U.S. Attorney Gen., 513 F.3d

1244, 1248-49 (11th Cir.), cert. denied, 129 S.Ct. 146 (2008). The only time an IJ

has jurisdiction to adjudicate an application for adjustment of status by an arriving

alien in removal proceedings is when (1) the alien filed an application for

adjustment of status with the USCIS, (2) the alien departed from and returned to

the United States pursuant to an advance parole, (3) USCIS denied the application

for adjustment of status, and (4) the alien was placed in removal proceedings upon

returning to the United States or after USCIS denied the application. 8 C.F.R.

§ 1245.2(a)(1)(ii).We have held that because an adjustment of status application

filed by an arriving alien in removal proceedings cannot be adjudicated during

removal proceedings, it is not an abuse of discretion for the BIA to deny a motion

to reopen that seeks to reopen removal proceedings in order to apply for an

adjustment of status. Scheerer, 513 F.3d at 1254.

      Based on the foregoing, we lack jurisdiction to review the BIA’s decision to

not sua sponte reopen Pasco-Ruiz’s case. Additionally, to the extent that Pasco-
                                           3
Ruiz argues that the BIA abused its discretion in denying her February 6, 2002,

motion to reopen, we lack jurisdiction because her petition for review was

untimely as to the BIA’s May 12, 2003, order. We also lack jurisdiction to the

extent Pasco-Ruiz argues that the BIA abused its discretion in denying her

September 12, 2008, motion to reopen as untimely because Pasco-Ruiz did not

argue in her motion to reopen that she failed to receive notice of her January 15,

2002, hearing before an immigration judge (“IJ”). Finally, the BIA did not abuse

its discretion in denying Pasco-Ruiz’s September 12th motion to reopen based on

the fact that the IJ lacked jurisdiction to grant her relief because the IJ lacked

jurisdiction to grant Pasco-Ruiz’s application for adjustment of status.

      Accordingly, we dismiss the petition for review to the extent that it argues

that the BIA abused its discretion in finding that Pasco-Ruiz’s motion to reopen

was untimely. We deny the petition to the extent Pasco-Ruiz argues that the BIA

abused its discretion in denying her motion to reopen due to the fact that the IJ

lacked jurisdiction to adjust Pasco-Ruiz’s status.

      DISMISSED IN PART AND DENIED IN PART.




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