Case: 11-14223       Date Filed: 10/10/2012   Page: 1 of 3




                                                               [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 11-14223
                              Non-Argument Calendar
                            ________________________

                              Agency No. A079-372-054



NIKOLA DRABEK,
a.k.a. Drabek Nikola,

                                                                           Petitioner,

versus

U.S. ATTORNEY GENERAL,

                                                                          Respondent.

                            ________________________

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

                                  (October 10, 2012)

Before BARKETT, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 11-14223     Date Filed: 10/10/2012   Page: 2 of 3

      Nikola Drabek, through counsel, seeks review of the Board of Immigration

Appeals’ (“BIA”) order denying as untimely and number-barred his second motion

to reopen based upon an ineffective assistance of counsel claim. In his petition,

Drabek argues that the BIA abused its discretion in denying his motion to reopen

because his counsel provided ineffective assistance.

      We review the denial of a motion to reopen an immigration proceeding for

an abuse of discretion, namely, whether the BIA exercised its discretion in an

arbitrary or capricious manner. Abdi v. U.S. Att’y Gen., 

, 1149 (11th

Cir. 2005).

      We recognize that an alien may move to reopen his removal order on the

basis of counsel’s ineffective assistance in the context of a deportation hearing.

Dakane v. U.S. Att’y Gen., 

, 1272-74 (11th Cir. 2004) (addressing

merits of ineffective assistance claim where petitioner filed a timely motion to

reopen). However, an alien is generally limited to filing one motion to reopen

removal proceedings and must file it within 90 days of the date of the BIA’s final

administrative removal order. INA § 240(c)(7)(A), (C)(i), 8 U.S.C.

§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). The 90-day filing deadline is

“mandatory and jurisdictional,” and, therefore, not subject to equitable tolling.

See Abdi, 430 F.3d at 1150 & n.2 (finding no abuse of discretion in the BIA’s

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              Case: 11-14223    Date Filed: 10/10/2012   Page: 3 of 3

denial of a motion to reopen based on an ineffective assistance of counsel claim

because the motion was time-barred, and thus, declining to address ineffective

assistance claim and denying petition). Indeed, we have declined to recognize

equitable tolling for an untimely motion to reopen based upon ineffective

assistance of counsel, “even where an alien acts blamelessly.” Anin v. Reno, 

, 1278-79 (11th Cir. 1999). It is undisputed that Drabek’s second motion

to reopen was untimely and number-barred and, as we have noted, we do not

recognize equitable tolling based upon ineffective assistance of counsel as the

statutory time limitation is mandatory.

      Alternatively, Drabek argues that the BIA should have exercised its

discretionary authority to sua sponte reopen proceedings, even though Drabek

never requested that the BIA do so. In response to our jurisdictional question,

Drabek asserts that we have jurisdiction over the BIA’s decision not to reopen

proceedings sua sponte. However, we lack jurisdiction to review a BIA’s denial

of a motion to reopen based on its sua sponte authority because 8 C.F.R. §

1003.2(a) provides no meaningful standard against which to judge the BIA’s

exercise of its discretion. Lenis v. U.S. Att’y Gen., 

, 1292-94 (11th

Cir. 2008).

      PETITION DISMISSED IN PART, DENIED IN PART.

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