UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JOSE SUAREZ-SANCHEZ, Petitioner,

v. LORETTA E. LYNCH, United States Attorney General, Respondent. Nos. 14-9557, 14-9615, 15-9518 (Petitions for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , BALDOCK , and HOLMES , Circuit Judges.

________________ _________________ Jose Suarez-Sanchez seeks review of three orders by the Bureau of Immigration Appeals (BIA) denying his mo tions to reopen removal proceedings. 1 We deny his petitions for review.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 Mr. Suarez-Sanchez filed three motions to reopen and a separate petition to review each order denying them. This generated three separa te cases on appeal, which we have consolidated for procedural purposes. FILED United States Court of Appeals Tenth Circuit 

### February 8, 2016
Elisabeth A. Shumaker Clerk of Court2 I. Background Mr. Suarez-Sanchez is a na tive and citizen of Mexico who came to the United States illegally and became the subject of re moval proceedings in 2009. He conceded removability, but, with the help of an a ttorney, applied for cancellation of removal on grounds that it would cause exceptiona l hardship to two of his children. See 8 U.S.C. § 1229b(b). Altern atively, he requested permis sion to depart voluntarily.
See 8 U.S.C. § 1229c. Following a hearing, an Immigration Judge (IJ) denied Mr. Suarez-Sanchez’s applicat ion for cancellation of remova l, but granted his request for voluntary departure. Th e BIA dismissed his appeal. Mr. Suarez-Sanchez did not leave the country as directed. Instead, he hired a new attorney who filed a motion to reopen removal proceedings after the voluntary departure period had e xpired. The BIA denied the mo tion. Mr. Suarez-Sanchez filed two subsequent motions to reopen, which the BIA also denied. As noted above, Mr. Suarez-Sanchez fi led a petition to review each order denying his motions to reopen.
II. Relevant Law An alien may file one motion to reope n removal proceedings within 90 days after the final order of removal. 8 U.S.C. § 1229a(c)(7)(A), (C)(i). 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). “T he BIA abuses its discretion when its decision provides no ra tional explanation, inexplicably departs3 from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Id . (internal quotation marks and citation omitted). III. First Motion to Reopen The BIA denied Mr. Suarez-Sanchez’s fi rst motion to reopen because he failed to leave the country with in the 60-day voluntary depa rture period, making him ineligible for cancel lation of removal, see 8 U.S.C. § 1229c(b)(2), (d)(1)(B), which is the relief he sought in the fi rst place. Mr. Suarez-Sanchez did not file a motion to reconsider, see 8 U.S.C. § 1229a(c)(6) (allowing an alien to file a motion to reconsider within 30 days af ter a final order), or challe nge the BIA’s ruling in his subsequent motions to reopen. See Mena-Flores v. Holder , 776 F.3d 1152, 1161 (10th Cir. 2015); Sidabutar v. Gonzales , 503 F.3d 1116, 1122 (1 0th Cir. 2007). Instead, he filed a petition for review in this court, where he argues for th e first time that the BIA violated his statutory a nd due process right to file a motion to reopen within 90 days. But Mr. Suarez-Sanchez failed to exhaust this argum ent, and thereby deprived us of jurisdiction to consider it. 2 See 8 U.S.C. § 1252(d)(1) (providing, “[a] court may review a final order of removal onl y if . . . the alien has exhausted all administrative remedies available”).

2 The exhaustion requirement does not a pply to constitutional claims the BIA lacks authority to resolve. Vicente-Elias v. Mukasey , 532 F.3d 1086, 10 94 (10th Cir. 2008). But although Mr. Suarez-Sanch ez frames his argument in terms of constitutional due process, it is a claim of procedural error that the BIA could have remedied. See id ; Akinwunmi v. I.N.S. , 194 F.3d 1340, 1341 (10t h Cir. 1999) (per curiam).4 IV. Second Motion to Reopen In his second motion to reopen, Mr. Su arez-Sanchez requested a new hearing on grounds that his former attorney was ineffective. The BIA denied the motion because it was filed more th an 90 days after the final order of removal, making it untimely. See 8 C.F.R. § 1003.2(c)(2). Mr. Su arez-Sanchez argues the BIA should have equitably tolled the time limit and granted his motion. “[T]o receive the benefit of equitable tolling, an al ien must demonstrate not only that the alien’s constitutional right to due process has been violated by the conduct of counsel, but that the alien has exercised due diligence in pursuing the case during the period the alien seeks to toll.” Mahamat v. Gonzales , 430 F.3d 1281, 1283 (10th Cir. 2005) (ellips is and internal quotati on marks omitted). The BIA concluded Mr. Suarez-Sanch ez had not shown due diligence in pursuing his ineffective assi stance claim, and specifically noted that he offered no explanation for his failure to raise the issue in his firs t motion to reopen. Indeed, aside from the concluso ry statement that he “exercised due diligen ce in this matter,” AR at 140, Mr. Suarez-Sanchez’ s motion fails to describe in any detail his efforts to pursue this claim before the limitation period expired. And as the BIA also recognized, Mr. Suarez-Sanchez did not allege that his former attorney’s actions caused any delay. Because the BIA provided a rational e xplanation for declining to equitably toll the filing deadline, we conc lude it did not abuse its discretion. See Maatougui , 738 F.3d at 1239.5 V. Third Motion to Reopen Mr. Suarez-Sanchez filed a petition to review the BIA’s order denying his third motion to reopen (which the BIA constr ued as a motion to reconsider), but his opening brief does not specifically address it. Rather, he argues only that the BIA erred by denying his first and second motions to reopen. We therefore conclude Mr. Suarez-Sanchez has forfeited any claims related to the third. See Bronson v.
Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007) (stating, “the omission of an issue in an opening brief generally forfeits appe llate consideration of that issue”). VI. Conclusion We deny Mr. Suarez-Sanchez’s petitions for review.

Entered for the Court

Jerome A. Holmes Circuit Judge