ALD-027                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-2039
                                       ___________

                              RAMON ANTONIO MOTA,
                                 a/k/a Ramon Mota,
                       a/k/a Ramon Antonio Mota De Los Santos,
                                               Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA

                       ____________________________________

       On Petition for Review of a Decision of the Board of Immigration Appeals
                             (Agency No. A042-086-408)
                          Immigration Judge: Walter Durling
                      ____________________________________

                Submitted on Respondent’s Motion to Dismiss, in Part,
              and Summarily Deny the Remainder of Petition for Review
                                 October 29, 2015
           Before: AMBRO, SHWARTZ and GREENBERG, Circuit Judges

                            (Opinion filed: November 2, 2015)
                                        _________

                                        OPINION*
                                        _________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Petitioner, Ramon Mota, is a citizen of the Dominican Republic who entered the

United States in 1989 as a lawful permanent resident. On September 24, 2013, an

Immigration Judge (“IJ”) found him removable under Immigration & Nationality Act

(“INA”) § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who has been

convicted of an aggravated felony as defined in INA § 101(a)(43)(B), 8 U.S.C.

1101(a)(43)(B) (illicit trafficking in a controlled substance, including a drug trafficking

crime), and INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), as an alien who has been

convicted of a controlled substance offense. Approximately eleven months later, on

September 22, 2014, Mota filed an administrative appeal challenging the IJ’s decision.

The Board of Immigration Appeals (“BIA”) dismissed the appeal as untimely on October

7, 2014.

       On January 28, 2015, Mota filed with the BIA a “motion to reopen and remand

and motion for stay of deportation.” In the motion, Mota did not address the untimeliness

of his administrative appeal or present new facts material to the removal determination;

rather, he argued that his criminal defense attorney had failed to inform him of the

immigration consequences of a guilty plea. The BIA construed Mota’s filing as a motion

for reconsideration and, by order entered March 11, 2015, denied it as untimely. On

April 9, 2015, Mota filed a petition for review with this Court.1



1
  Mota initially filed his petition for review in the Second Circuit, but the Court of
Appeals transferred the case to this Court. See 8 U.S.C. § 1252(b)(2) (“The petition for
review shall be filed with the court of appeals for the judicial circuit in which the
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       The government now moves to: (1) dismiss the petition to the extent Mota seeks

review of the BIA’s October 7, 2014 order; and (2) summarily deny it to the extent he

seeks review of the BIA’s March 11, 2015 order. We will grant the government’s

motion.

       First, as the government correctly contends, we lack jurisdiction to review the

BIA’s October 7, 2014 decision because Mota’s petition for review, filed in April 2015,

was untimely with respect to that decision. See 8 U.S.C. § 1252(b)(1) (“The petition for

review must be filed not later than 30 days after the date of the final order of removal.”);

Vakker v. Att’y Gen., 

, 146 (3d Cir. 2008) (stating that this statutory time

limit is a jurisdictional requirement); McAllister v. Att’y Gen., 

, 185 (3d Cir.

2006) (same). Therefore, we will grant the government’s motion to partially dismiss the

petition for review for lack of jurisdiction.

       Second, while Mota’s petition for review was timely with respect to the BIA’s

March 11, 2015 order denying reconsideration, see 8 U.S.C. § 1252(b)(1), the petition

presents no substantial question with respect to that order, see 3d Cir. L.A.R. 27.4; I.O.P.

10.6, as the BIA did not abuse its discretion here. See Filja v. Gonzales, 

,

251 (3d Cir. 2006) (explaining that we review the BIA’s decision to deny reconsideration

for abuse of discretion and will not disturb it unless it is “arbitrary, irrational, or contrary

to law.”).

immigration judge completed the proceedings.”). This Court denied Mota’s motion for a
stay of removal on July 28, 2015.

                                                3
       As the Board explained, Mota was required to file his motion to reconsider “within

30 days of the date of entry of a final administrative order of removal.” 8 U.S.C.

§ 1229a(c)(6)(B). Because a final order of removal was entered in Mota’s case on

October 7, 2014, his motion to reconsider, filed on January 28, 2015, was untimely.

Although Mota argues on appeal that the Board violated his due process rights by

denying his motion without reviewing the full record of the removal hearing, the Board

was clearly within its discretion to deny the motion on a statutorily prescribed procedural

ground without reaching its merits. Furthermore, even if the Board had reached the

merits, it would not have been permitted to consider anything other than its preceding

untimeliness determination.2 See In re: Lopez, 22 I. & N. Dec. 16, 17 (BIA 1998)

(explaining that when the BIA dismisses an administrative appeal for lack of jurisdiction,

the only subsequent motion it may consider is a motion seeking reconsideration of its

untimeliness determination).

       Accordingly, we will grant the government’s motion to dismiss the petition for

review to the extent it challenges the BIA’s October 7, 2014 decision. To the extent the

2
  Mota appears to believe that the BIA construed his motion as one seeking reopening
rather than reconsideration. (Br. 12-13) (noting that the BIA denied his motion as
untimely pursuant to 8 C.F.R. § 1003.2(c)(1), which provides a 90-day period for
reopening.) The BIA explicitly stated, however, that it construed the filing as a motion to
reconsider, and explicitly relied on INA § 240(c)(6)(B) and 8 C.F.R. § 1003.2(b)(2) in
finding it untimely. In any event, as discussed above, the BIA would have lacked the
authority to review a motion to reopen. See In re: Lopez, 22 I&N Dec. at 17. Further, in
its order dismissing Mota’s appeal, the BIA informed him that any motions to reopen his
case should be filed with the Immigration Court. See 8 C.F.R. § 1003.23(b)(1)(ii)
(“Motions to reopen or reconsider a decision of an Immigration Judge must be filed with
the Immigration Court having administrative control over the Record of Proceeding.”).
                                             4
petition is within our jurisdiction, it presents no substantial question; we will therefore

grant the government’s motion to summarily deny the petition. See 3d Cir. L.A.R. 27.4;

I.O.P. 10.6; Cradle v. U.S. ex rel. Miner, 

, 539 (3d Cir. 2002). The motion

to supplement the record is denied as moot.




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