[DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                              April 24, 2008
                           No. 07-13380                     THOMAS K. KAHN
                       Non-Argument Calendar                    CLERK
                     ________________________

                       Agency Nos. A97-934-612
                            A97-634-613

CAMILO ALBERTO RODRIGUEZ,
ELVIRA VASQUEZ,
NICKY MABEL SMITH,

                                                                   Petitioners,

                                 versus

U.S. ATTORNEY GENERAL,

                                                                  Respondent.


                     ________________________

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

                            (April 24, 2008)

Before ANDERSON, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:
      Camilo Alberto Rodríguez and his wife and daughter petition for review of

the denial by the Board of Immigration Appeals (the “BIA”) of their motion to

reopen their removal orders. We find no error in the BIA’s order, and we,

therefore, deny the petition.

      Petitioners are Colombian citizens who traveled separately to the United

States on non-immigrant visitor visas, arriving on three different dates in 1999 and

2000. All three submitted applications for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”) in March 2004. The

Immigration Judge denied Petitioners’ application for asylum as time-barred,

denied the claims for withholding of removal and relief under CAT for failure to

carry their burden of proof, and issued a removal order.

      Rodríguez hired an attorney to represent him and his family in their appeal

to the BIA. The attorney timely filed a notice of appeal, but neglected to file a

brief in support of the appeal. The BIA dismissed the appeal on October 19, 2006.

Petitioners did not seek appellate review of that dismissal.

      Petitioners filed a motion to reopen on April 16, 2007 stating that they were

unaware that their attorney had failed to file a brief or that the BIA had denied their

appeal and arguing that their due process rights were violated because they

received ineffective assistance of counsel. The BIA denied the motion, and

Petitioners timely filed this petition for review.
                                            2
      We review the BIA’s denial of a motion to reopen for abuse of discretion.

Abdi v. U.S. Att’y Gen., 

, 1149 (11th Cir. 2005). We, therefore, are

limited to determining “whether there has been an exercise of administrative

discretion and whether the matter of exercise has been arbitrary or capricious.” 

v. Smith, 

, 1490 (11th Cir. 1985)).

      A motion to reopen is appropriate where the motion “state[s] the new facts

that will be proven at a hearing to be held if the motion is granted, and [is]

supported by affidavits or other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B).

The statute dictates that a motion to reopen immigration proceedings “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)(C)(i).

      This court has stated that this 90-day filing deadline is mandatory and

jurisdictional. 

. Abdi followed the reasoning given in Anin

v. Reno, 

, 1278 (11th Cir. 1999), wherein this court found that the

180-day deadline for filing a motion contesting deportation orders issued in

absentia was mandatory and jurisdictional. Abdi, however, did not dismiss the

petition—based on similar grounds to those brought here—for lack of jurisdiction,

but instead went on to deny the petition applying an abuse of discretion standard of

review.



                                           3
       Assuming we hold jurisdiction over this petition, the BIA did not abuse its

discretion by dismissing this motion to reopen. Here, Petitioners did not just

barely miss the 90-day deadline, but rather missed the deadline by almost 90 days.

We find no abuse of discretion where the BIA denied this clearly untimely motion

to reopen.1

       Petitioners also argue that equitable tolling should extend the deadline for

filing because it was the ineffective assistance of counsel that prevented Petitioners

from timely filing their motion. Under similar circumstances in Abdi, this court

refused to apply equitable tolling where the petitioner “failed to exercise due

diligence in preserving his legal 

. Although in both Abdi

and here the failure to preserve rights was allegedly the fault of counsel, this court

made clear in Abdi that equitable tolling will not be applied to these facts. 

foregoing reasons, this petition is DENIED.




       1
          Because we find that the motion to reopen was properly dismissed as time-barred, we
do not need to review the alternative grounds for dismissal and address the merits of the
Petitioners’ ineffective assistance of counsel claim.
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