NOT PRECEDENTIAL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.
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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). 6