                                                             [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                               JAN 23, 2009
                             No. 08-13737                    THOMAS K. KAHN
                         Non-Argument Calendar                   CLERK
                       ________________________

                        Agency No. A97-627-702

RENE ALBERTO OJEDA ESPANOL,


                                                                     Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                       ________________________

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

                            (January 23, 2009)

Before BIRCH, HULL and WILSON, Circuit Judges.

PER CURIAM:
      Rene Alberto Ojeda Espanol (“Ojeda”) seeks review of the Board of

Immigration Appeals’ (“BIA”) denial of his motion to reopen his removal

proceedings. Ojeda based his filing on an application for adjustment of status. On

review, he argues that the BIA abused its discretion and acted arbitrarily by

denying his February 4, 2008 motion to reopen because he filed an application for

immediate relief and presented new evidence that did not previously exist, namely,

evidence proving the bona fides of his marriage to a United States resident and

Cuban national. He also argues that the BIA acted in an arbitrary manner by not

stating its unwillingness to exercise its discretion to reopen sua sponte. He asserts

that the BIA’s failure to reopen sua sponte is non-reviewable only if the BIA

expressly declines to reopen.

                                    I. Timeliness

      “We review the BIA’s denial of a motion to reopen for abuse of discretion.”

 Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (per curiam). “Our

review is limited to determining whether there has been an exercise of

administrative discretion and whether the matter of exercise has been arbitrary or

capricious.” Id. (citation and internal quotation marks omitted).

      Under 8 C.F.R. § 1003.2(a) and (c)(1), an alien may move the BIA to reopen

a prior removal order based on new evidence. However, the alien must file the

motion no later than 90 days after the date on which the final administrative
                                           2
decision was rendered in the proceeding sought to be reopened. 8 C.F.R.

§ 1003.2(c)(2); 8 U.S.C. § 1229a(c)(7)(C)(i). The 90-day period for filing a

motion to reopen is jurisdictional and mandatory. Abdi v. U.S. Att’y Gen., 430

F.3d 1148, 1150 (11th Cir. 2005) (per curiam). An exception to the 90-day

deadline exists, if (a) the motion to reopen is for the purpose of reapplying for

relief “based on changed circumstances arising in the country of nationality or in

the country to which deportation has been ordered, if such evidence is material and

was not available and could not have been discovered or presented at the previous

hearing;” (b) the motion to reopen is “[a]greed upon by all parties and jointly

filed;” or, (c) the motion to reopen was filed by the INS “in exclusion or

deportation proceedings when the basis of the motion is fraud in the original

proceeding or a crime that would support termination of asylum. . . .” 8 C.F.R.

§ 1003.2(c)(3); 8 U.S.C. § 1229a(c)(7)(C).

      Because Ojeda’s motion to reopen was undisputably untimely and Ojeda

does not argue that any exception to the 90-day deadline applied, the BIA lacked

jurisdiction to consider his motion. Consequently, the BIA did not abuse its

discretion by denying his motion, and we deny the petition as to this matter.

                              II. Sua Sponte Authority

      “We review subject-matter jurisdiction de novo.” Ruiz v. Gonzales, 479

F.3d 762, 765 (11th Cir. 2007). “A court may review a final order of removal only
                                           3
if . . . the alien has exhausted all administrative remedies available to the alien as of

right. . . .” 8 U.S.C. § 1252(d)(1). This requirement is jurisdictional, and bars

review of claims not raised before the BIA. Sundar v. I.N.S., 328 F.3d 1320, 1323

(11th Cir. 2003).

      “The Board may at any time reopen or reconsider on its own motion any

case in which it has rendered a decision.” 8 C.F.R. § 1003.2(a). The regulations

provide that “[t]he decision to grant or deny a motion to reopen or reconsider is

within the discretion of the Board,” and “[t]he Board has discretion to deny a

motion to reopen even if the party moving has made out a prima facie case for

relief.” Id. We lack jurisdiction to review the BIA’s failure to exercise its

discretion to reopen based on its sua sponte authority under 8 C.F.R. § 1003.2(a).

Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1292-93 (11th Cir. 2008).

      Because we lack jurisdiction to review the BIA’s failure to exercise its

discretion to reopen based on its sua sponte authority and the BIA was not required

to expressly decline to exercise this authority, we dismiss the petition as to this

matter.

                                   CONCLUSION

      Upon review of the record and the parties’ briefs, we discern no reversible

error. Accordingly, the petitioner’s petition is denied in part and dismissed in part.

      PETITION DENIED in PART, DISMISSED in PART.
                                            4
