                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 11-2531
                                  ___________

                                DEVON NUNES,
                                         Petitioner

                                        v.

              ATTORNEY GENERAL OF THE UNITED STATES,
                                    Respondent

                   ____________________________________

                    On Petition for Review of an Order of the
                         Board of Immigration Appeals
                          (Agency No. A099 267 322)
                  Immigration Judge: Honorable Andrew Arthur
                   ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 April 10, 2012

      Before: CHAGARES, VANASKIE and STAPLETON, Circuit Judges

                          (Opinion filed: April 11, 2012)
                                  ___________

                                   OPINION
                                  ___________

PER CURIAM

    Devon Nunes, proceeding pro se, petitions for review of an order of the Board of

                                         1
Immigration Appeals (“BIA”) denying his motion to reopen his immigration proceedings.

We will deny the petition for review.

       Nunes is a native and citizen of Jamaica. He entered the United States in 1988 as

a non-immigrant student and attended Temple University. Nunes last attended school in

2000. The Department of Homeland Security issued a notice to appear in 2009 charging

that Nunes is removable from the United States for failing to comply with the conditions

of the status under which he was admitted. Through counsel, Nunes conceded that he is

removable. Nunes’ lawyer later withdrew from the proceedings and Nunes proceeded

pro se. He applied for cancellation of removal.

       The IJ denied Nunes’ application because he had not made the required showing

that his removal would result in exceptional and extremely unusual hardship to a

qualifying relative. The IJ granted Nunes voluntary departure. On October 12, 2010, the

BIA affirmed the IJ’s decision. The BIA did not reinstate the period of voluntary

departure because Nunes had not paid the required bond. The BIA thus ordered Nunes’

removal. We dismissed Nunes’ subsequent petition for review because we lacked

jurisdiction to review the BIA’s discretionary decision that Nunes failed to show the

requisite exceptional and extremely unusual hardship to a qualifying relative for

cancellation of removal. See C.A. No. 10-4209.

       In March 2011, Nunes filed a motion to reopen his immigration proceedings in

order to apply for adjustment of status. Nunes’ wife, a United States citizen, had filed a

                                             2
petition for alien relative on his behalf. Because Nunes filed his motion more than 90

days after entry of his final removal order on October 12, 2010, the BIA denied the

motion as untimely. The BIA also denied Nunes’ request that the BIA sua sponte reopen

his proceedings, finding no exceptional circumstances in his case. The BIA explained

that it appeared that Nunes was barred from applying for adjustment of status for ten

years because he did not post a voluntary departure bond. Even if not barred, the BIA

stated that Nunes has been married since 1996 and he could have pursued adjustment of

status earlier. The BIA noted that Nunes’ wife had previously filed a visa petition, but

the petition was denied for failure to appear for an interview. The BIA further stated that

Nunes did not explain why he did not try to regularize his status before 2007. Nunes

filed a pro se petition for review.

       As a preliminary matter, we deny the Government’s motion to dismiss the petition

for review for lack of jurisdiction. The Government is correct that we lack jurisdiction to

review the BIA’s discretionary decision declining to sua sponte reopen Nunes’

immigration proceedings. Pllumi v. Att’y Gen., 642 F.3d 155, 160 (3d Cir. 2011).

Nunes, however, asserts in his brief that the BIA’s decision was based on errors of law

and we have jurisdiction to consider such arguments. Id. We also have jurisdiction to

review the BIA’s ruling that the motion to reopen was untimely filed. See Cruz v. Att’y

Gen., 452 F.3d 240, 242 (3d Cir. 2006).

       Nunes argues in his brief that the BIA declined to sua sponte reopen his

                                             3
proceedings based on the erroneous belief that it would be futile to do so in light of his

failure to post a voluntary departure bond and his resulting ineligibility for adjustment of

status. Relying on Mahmood v. Holder, 570 F.3d 466 (2d Cir. 2009), Nunes contends

that, to the extent the BIA believed he is barred from adjustment of status, a remand is

warranted.1

       In Mahmood, an alien who was granted voluntary departure filed a motion to

reopen his proceedings before the voluntary departure period expired but more than 90

days after the issuance of the final administrative order. The motion was denied as

untimely and because the alien was ineligible for adjustment of status based on his failure

to depart. The court of appeals concluded that a remand was warranted because the BIA

had erroneously assumed the alien was barred from adjustment of status by failing to

depart and, on this basis, may have declined to consider whether to sua sponte reopen the

proceedings. Mahmood, 570 F.3d at 467.

       The present case is distinguishable from Mahmood. The BIA noted in its decision

that it appeared Nunes is barred from obtaining adjustment status, but ruled that, even if

he is not barred, he did not show exceptional circumstances warranting sua sponte

reopening. As noted above, the BIA explained Nunes had been married to his wife since

1996 and he had not sufficiently addressed why he had not already pursued or obtained

       1
        Nunes cites Mahmood v. Holder, 562 F.3d 118 (2d Cir. 2009), in his brief, but
that decision was withdrawn and replaced with Mahmood v. Holder, 570 F.3d 466 (2d
Cir. 2009).

                                              4
adjustment of status. Unlike in Mahmood, where the court found it unclear whether the

agency declined to reopen sua sponte because it believed doing so would be futile, the

BIA found Nunes had not shown exceptional circumstances warranting reopening sua

sponte, assuming Nunes was not barred from obtaining adjustment of status.2

       Nunes also argues that the BIA denied sua sponte reopening based on an

erroneous belief that he is ineligible for adjustment of status due to the denial of an earlier

petition for alien relative filed on his behalf. Nunes asserts that eligibility for adjustment

of status is not precluded by the denial of an earlier visa petition as a matter of law. The

BIA’s decision, however, does not reflect that the BIA believed Nunes was ineligible for

adjustment of status based on the denial of the earlier visa petition. The BIA merely

noted the fact that an earlier visa petition had been denied in addressing Nunes’

explanations for failing to obtain adjustment of status earlier.

       Nunes further asserts that he was unaware that he was required to file his motion

to reopen within 90 days of the final administrative order in his case and that he believed

he had to pursue his appellate remedies before filing such a motion. To the extent Nunes’

assertion can be construed as an argument that the 90-day period for filing a motion to

reopen should be equitably tolled, Nunes did not seek equitable tolling before the BIA.

       2
         The Government also argues in its brief that Mahmood does not apply because
the alien in that case filed a motion to reopen before the voluntary departure period
expired and Nunes did not. In light of the BIA’s ruling that sua sponte reopening is not
warranted even if adjustment of status is not barred, it is unnecessary to address this
argument or Nunes’ argument that he is not barred from adjustment of status based on his
failure to post a bond.
                                              5
Moreover, equitable tolling applies when a petitioner has in some extraordinary way been

prevented from asserting his rights. Miller v. New Jersey State Dep’t of Corr., 145 F.3d

616, 618 (3d Cir. 1998). A petitioner’s pro se status and lack of knowledge generally do

not warrant equitable tolling. See Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000).

Although Nunes also states that limited access to the law library and difficulties with his

mail may have contributed to his late filing, his brief reflects that he did not intend to

pursue a motion to reopen until the United States Supreme Court denied certiorari in his

underlying proceedings.3

       Finally, to the extent Nunes asserts in his brief that errors occurred in his

underlying proceedings, such arguments are not properly before us. We also do not

consider for want of jurisdiction Nunes’ challenge to the BIA’s factual finding that he did

not try to regularize his status before 2007, which relates to its discretionary decision to

deny sua sponte reopening, or his claim for nunc pro tunc relief, which he did not raise

before the BIA.

       Accordingly, the petition for review will be denied. The Government’s motion for

expedited consideration is denied.




       3
        We do not consider Nunes’ additional arguments regarding equitable tolling
presented for the first time in his reply brief. Common Cause of Pennsylvania v.
Pennsylvania, 558 F.3d 249, 269 n.10 (3d Cir. 2009).
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