FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 27, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-15237

Non-Argument Calendar

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Agency Nos. A073-048-445

A073-048-444

DEEPAK PRATAPRAI TOTLANI, 

HEENA DEEPAK TOTLANI, 

MANSI DEEPAK TOTLANI, 

CHANDNI DEEPAK TOTLANI, 

Petitioners, 

versus

U.S. ATTORNEY GENERAL,

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(July 27, 2010)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:

Deepak Prataprai Totlani and his family, natives and citizens of India,

petition this Court to review the decision of the Board of Immigration Appeals that

denied Totlani’s motion to reopen. In the motion, Totlani and his family sought

cancellation of removal and adjustment of status. The Board found that the

Totlanis’ failure either to withdraw their request for voluntary departure or move

to reopen before their 60-day departure period expired made them ineligible for

the relief they sought. See 8 U.S.C. § 1229c(d)(1)(B). We deny the petition.

Totlani presents three arguments, but we lack jurisdiction to consider two of

those arguments. Totlani argues that the order to depart voluntarily was

withdrawn automatically because his family failed to post a departure bond, which

entitled the family to 90 days instead of 60 days to move to reopen. Totlani also

argues that his family received three additional days to depart voluntarily because

the Board mailed its decision, and his family timely withdrew their request to

depart voluntarily within that enlarged period. Totlani did not present these two

arguments to the Board, and “absent a cognizable excuse or exception, ‘we lack

jurisdiction to consider claims that have not been raised before the [Board].’” 

Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006)

(quoting Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003)). Alternatively, we

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also agree with the government that these arguments are meritless.

Totlani argues the Board abused its discretion when it denied as untimely

Totlani’s motion to reopen based on ineffective assistance of counsel, but we

disagree. An alien may file one motion to reopen, and that motion must be filed

within 90 days of the order of removal. 8 U.S.C. §§ 1229a(c)(7)(A), (C)(i); 8

C.F.R. § 1003.2(c)(2). Totlani challenged the effectiveness of counsel in his

“Rebuttal Brief and Supplement,” not in his motion to reopen. The brief, which

was filed several months after the limitation period expired, also contained no

explanation for Totlani’s delay in pursuing his claim of ineffectiveness. Totlani

now argues that he omitted the claim from his motion because of “changes in

relevant case law,” but we will not consider his argument for the first time on

appeal. See Amaya-Artunduaga, 463 F.3d at 1250. The Board did not abuse its

discretion when it determined that the claim of ineffective assistance was “a new,

separate, and distinct basis for reopening.” Totlani’s motion was untimely and did

not warrant equitable tolling of the limitation period. See Abdi v. U.S. Att’y Gen.,

430 F.3d 1148, 1150 (11th Cir. 2005); see also Anin v. Reno, 188 F.3d 1273,

1278–79 (11th Cir. 1999). 

Totlani’s petition for review is DENIED.

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