                                                              United States Court of Appeals
                                                                       Fifth Circuit
               IN THE UNITED STATES COURT OF APPEALS F I L E D
                       FOR THE FIFTH CIRCUIT       February 13, 2006
                          _____________________              Charles R. Fulbruge III
                                                                     Clerk
                              No. 03-60764
                          ____________________

                               ZHI XIONG LIU,

                                            Petitioner,
                                     v.

    ALBERTO R. GONZALES, Attorney General of the United States,

                                            Respondent.

                           __________________

              PETITION FOR REVIEW FROM A FINAL ORDER OF
                  THE BOARD OF IMMIGRATION APPEALS
                         __________________

    Before GARWOOD, DAVIS, and BENAVIDES, Circuit Judges.

    PER CURIAM:1

       Petitioner   Liu   challenges      the   order   of     the      Board         of

Immigration Appeals affirming the immigration judge’s denial

of Liu’s motion to reopen his deportation proceedings in order

to adjust his status as untimely.2

       Zhi   Xiong Liu,    a   Chinese    citizen,   entered         the      United

States from Mexico without inspection sometime around May 5,

1
  Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2
  Liu also filed several motions to reconsider and to reopen
proceedings with the BIA following its affirmation of the
immigration judge’s decision. Each was denied. Liu does not
now appeal the denial of those motions, nor does he appeal the
initial denial of his asylum application or the voluntary
departure order.


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1992.      In August of 1993 Liu applied for asylum based on

feared political persecution in China, and in May of 1996, his

application was referred to an immigration judge.                           The

immigration judge held a hearing in Liu’s case on July 6,

1998,     and    denied   Liu’s     application       for     asylum.3       The

immigration judge granted Liu a 180-day voluntary departure

period, expiring on January 4, 1999.                 Liu failed to depart

voluntarily.

     On June 14, 2002, nearly four years after the immigration

judge’s     decision,     Liu     filed     a     motion     to   reopen    his

proceedings, asking the immigration judge to adjudicate the

visa and residency applications still pending with the INS.

The immigration judge denied Liu’s motion as untimely, and the

Bureau     of     Immigration     Appeals       (“BIA”)     affirmed     without

opinion.        Because Liu’s motion to reopen his case was filed

untimely, he failed to exhaust his administrative remedies,

which precludes this court from exercising jurisdiction over


 3
   In December of 1997, before the immigration judge addressed
 Liu’s application, Liu married a United States citizen, and in
 January of 1998, filed forms I-130 and I-485 with the INS.
 Liu notes in his brief that in December of 2003, after the BIA
 affirmed the immigration judge’s denial of his motion to
 reopen, Liu received notice that his I-130 application had
 been approved. Although we dismiss Liu’s pending petition for
 lack of jurisdiction, doing so will not preclude Liu for
 filing a future motion to reopen with either the immigration
 judge or the BIA should he meet the requirements to do so.
 See 8 C.F.R. § 1003.23(b)(4)(iv)(2003) (excluding motions to
 reopen joined by all parties from time and numerical
 limitations).


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his claims.        See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246,

248 (5th Cir. 2004); see also Wang v. Ashcroft, 260 F.3d 448,

452-53 (5th Cir. 2001).

       Liu argues that limitations period for a motion to reopen

should be equitably tolled.               Although equitable tolling is a

“discretionary        doctrine       that          turns    on     the   facts     and

circumstance of a particular case,” we ordinarily “draw on

general        principles     to    guide      when        equitable     tolling    is

appropriate.”        Fierro v. Cockrell, 294 F.3d 674 (5th Cir.

2002).     Equitable tolling is not invoked by “garden variety

claims of excusable neglect.”                 Rashidi v. American President

Lines, 96 F.3d 124 (5th Cir. 1996).                    Thus, equitable tolling

will      be      warranted        only       in      “rare       and    exceptional

circumstances.”       U.S. v. English, 400 F.3d 273, 275 (5th Cir.

1995).     Liu offers no explanation for his failure to file his

motion within the prescribed 90-day period.                         See 8 C.F.R. §

1003.23(b)(1)(2003).

       Liu also argues that the BIA should have exercised its

sua sponte authority to reopen his case.                         However, he failed

to make that argument to either the immigration judge or the

BIA.     We are therefore without jurisdiction to consider the

issue on appeal.       See Wang, 260 F.3d at 453.

       The Petition for Review is DISMISSED.




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