UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

HAMZA BALLAD, 

 Petitioner, 

v. 

LORETTA E. LYNCH, United States 

Attorney General, 

 Respondent. 

No. 15-9563 

(Petition for Review) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before KELLY, PORFILIO, and BALDOCK, Circuit Judges. 

_________________________________ 

 Hamza Ballad, a native and citizen of Morocco, challenges the Board of 

Immigration Appeals’ (BIA’s) denial of his motion to reopen removal proceedings. 

Exercising jurisdiction under 8 U.S.C. § 1252(a)(1), we deny Ballad’s petition. 

BACKGROUND

 Ballad lawfully entered the United States on a student visa in 2008. He was soon 

placed in removal proceedings, however, for violating the conditions of his visa. He 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

March 1, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

appeared before an immigration judge (IJ) and sought asylum, restriction on removal, and 

protection under the Convention Against Torture. The IJ denied relief and ordered Ballad 

removed to Morocco. The BIA dismissed his appeal in March 2013, and a panel of this 

court dismissed in part and denied in part his subsequent petition for review. See Ballad 

v. Holder, 554 F. App’x 705 (10th Cir. 2014). 

 Soon after this court’s decision, Ballad’s U.S. citizen wife submitted to the U.S. 

Citizenship & Immigration Services (USCIS) an I-130 Petition for Alien Relative on 

Ballad’s behalf. USCIS granted the petition in April 2015, and in June, Ballad filed with 

the BIA a motion to reopen the removal proceedings. In the motion, he cited the 

approved I-130 petition and indicated his intent to seek adjustment of status if his case 

was reopened. The BIA denied the motion as untimely and declined to exercise its 

authority to sua sponte reopen the proceedings. 

DISCUSSION

 We review the denial of a motion to reopen for abuse of discretion. See 

Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013). “The BIA abuses its 

discretion when its decision provides no rational explanation, inexplicably departs from 

established policies, is devoid of any reasoning, or contains only summary or conclusory 

statements.” Id. (internal quotation marks omitted). 

 An alien may file a motion to reopen within 90 days after the final order of 

removal. 8 U.S.C. § 1229a(c)(7)(C)(i). Ballad filed his motion more than two years after 

the final removal order in his case. While there are exceptions to the 90-day deadline—

including (1) if the removal order was entered in absentia, 8 C.F.R. § 1003.2(c)(3)(i); 
3 

(2) if the motion to reopen was filed for the purpose of applying “for asylum or 

withholding of deportation based on” changed country conditions, id. § 1003.2(c)(3)(ii); 

(3) if the motion was jointly filed by the parties, id. § 1003.2(c)(3)(iii); or (4) if the 

Government filed the motion, id. § 1003.2(c)(3)(iv)—Ballad does not invoke any of these 

exceptions.1

 Instead, Ballad argues that “exceptional circumstances” warranted reopening 

“because [he] was eligible to adjust his status based upon” his wife’s approved I-130 

petition. Pet’r Br. at 15. This argument lacks merit. 

 First, to the extent Ballad is challenging the BIA’s refusal to sua sponte reopen, 

see In re J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997) (recognizing the BIA’s authority “to 

reopen proceedings sua sponte in exceptional situations”), we lack jurisdiction to review 

that decision, see Salgado-Toribio v. Holder, 713 F.3d 1267, 1270–71 (10th Cir. 2013). 

 Second, to the extent Ballad is seeking equitable tolling, see Mahamat v. 

Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005) (requiring ineffective assistance of 

counsel and due diligence in pursuing relief), Ballad did not present such a claim to the 

BIA. It is therefore unexhausted and beyond our review. See id.

 Third, we reject Ballad’s assertion that the BIA’s denial of his motion to reopen 

violated due process by “depriv[ing] him of an ability to become a lawful permanent 

resident.” Pet’r Br. at 16. Ballad has no liberty or property interest in the reopening of 

removal proceedings, which is a purely discretionary form of relief. See Aguilera v. 

 1

 Congress has exempted battered spouses, children and parents from the 

90-day filing deadline requirement, see 8 U.S.C. § 1229a(c)(7)(C)(iv), but Ballad 

does not claim this statute applies here. 
4 

Kirkpatrick, 241 F.3d 1286, 1293 (10th Cir. 2001); accord Moosa v. Holder, 644 F.3d 

380, 385 (7th Cir. 2011); Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 

2008). 

 Finally, although Ballad is the beneficiary of his wife’s approved I-130 petition 

and “presumptively eligible to adjust his status,” Pet’r Br. at 15, that does not change the 

fact that his motion to reopen was untimely. “[U]ntimely motions to reopen to pursue an 

application for adjustment of status . . . do not fall within any of the . . . exceptions to the 

time limits for motions to reopen before the” BIA. Matter of Yauri, 25 I. & N. Dec. 103, 

105 (BIA 2009); see also In re Velarde–Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002) 

(permitting the agency to reopen removal proceedings to allow an alien to apply to adjust 

status based on marriage to a U.S.-citizen only if the motion to reopen was “timely 

filed”), overruled in part on other grounds by In re Avetisyan, 25 I. & N. Dec. 688, 693-

94 (BIA 2012).

 In short, the BIA did not abuse its discretion by denying Ballad’s motion to 

reopen. 

CONCLUSION

 The petition for review is denied. 

Entered for the Court 

John C. Porfilio 

Circuit Judge