Trevaun Lloyd Mowatt v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-12515
Non-Argument Calendar
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Agency No. A055-569-825
TREVAUN LLOYD MOWATT,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(January 7, 2016)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
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Trevaun Mowatt seeks review of the Board of Immigration Appeals’ (BIA)
denial of his motion to reopen removal proceedings, which was based on his ability
to adjust his status after his marriage to a United States citizen. Specifically,
Mowatt argues the BIA abused its discretion by denying his motion as untimely,
that equitable tolling is applicable in his case, and the standard enumerated in In re
Velarde-Pacheco, 23 I&N Dec. 253 (BIA 2002) violates the Administrative
Procedure Act. After review,1 we deny the petition in part and dismiss in part.
We may review a final order of removal only after an alien has exhausted all
administrative remedies available to him. 8 U.S.C. § 1252(d)(1). This requirement
is jurisdictional, and thus, precludes review of a claim that was not presented to the
BIA. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1249-50 (11th Cir.
2006). We lack jurisdiction to review Mowatt’s claim for equitable tolling and his
argument that Velarde violates the APA, because he failed to raise these arguments
before the BIA and thus, did not exhaust the claims. See id.
The INA provides an alien may file one motion to reopen removal
proceedings, but “the motion to reopen shall be filed within 90 days of the date of
entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(A),
(C)(i). This 90-day time limit is subject to specifically enumerated exceptions,
1 We review our subject matter jurisdiction de novo. Amaya-Artunduaga v. U.S. Att’y
Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We review the denial of a motion to reopen for an
abuse of discretion. Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1226 (11th Cir. 2008).
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such as changed conditions arising in the county to which deportation has been
ordered, or if the petitioner is a battered spouse, child, or parent. 8 U.S.C.
§ 1229a(c)(7)(C)(ii), (iv). The BIA did not abuse its discretion by denying
Mowatt’s motion to reopen, as the motion was untimely and met none of the
statutory exceptions to allow for the untimely filing of a motion.
Accordingly, we deny the petition in part and dismiss in part.
PETITION DENIED IN PART, DISMISSED IN PART.
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