NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-3673

_____________

MIRIAM MWILA TURNBO,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Respondent

_____________

On Petition for Review of a Decision of the

Board of Immigration Appeals

BIA No. A087-230-788

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

April 3, 2017

Before: CHAGARES, SCIRICA, and FISHER, Circuit Judges.

(Filed: April 11, 2017)

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OPINION*

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CHAGARES, Circuit Judge.

Petitioner Miriam Mwila Turnbo seeks review of the August 26, 2016 decision of 

the Board of Immigration Appeals (“BIA”), which denied her motion for reconsideration 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

of an April 27, 2016 BIA decision denying a motion to reopen. We will deny the petition 

for review.

I.

Turnbo is a citizen of Zambia and entered the United States on a student visa on 

January 15, 1998. She became a lawful permanent resident on January 15, 2009, and the 

adjustment of status was based on her marriage to John L. Turnbo, a United States 

citizen. On May 21, 2012, she pled guilty to two offenses in violation of the 

Pennsylvania Controlled Substances Act: possession with intent to distribute cocaine in 

violation of 35 Pa. Cons. Stat. § 780-113(a)(30) and criminal conspiracy to commit 

possession with intent to distribute cocaine in violation of 18 Pa. Cons. Stat. § 903(c). 

Turnbo entered removal proceedings on August 10, 2012, and her removability was 

based on her status as an alien convicted of: (1) an aggravated drug trafficking felony 

under 8 U.S.C. § 1101(a)(43)(B), (2) an aggravated felony conspiracy under 8 U.S.C. § 

1101(a)(43)(U), and (3) a controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i). 

Turnbo was represented by counsel at her removal hearing before an immigration 

judge (“IJ”) and conceded removability on the above three bases. She also acknowledged 

that she was not seeking any other basis of relief. On November 21, 2013, the IJ issued 

an order to remove Turnbo. Turnbo filed an appeal with the BIA, which denied the 

appeal on March 31, 2015. 

Turnbo filed a motion to reopen on June 18, 2015. In that motion, where she was 

represented by new counsel, Turnbo advanced two arguments. First, she stated that she 

had a pending Form I-130 Petition for Alien Relative and Application to adjust status. 
3

Second, she argued that she was eligible for a waiver of removal under section 212(h) of 

the Immigration and Naturalization Act, 8 U.S.C. § 1182(h). The BIA denied this motion 

to reopen on April 27, 2016. Joint Appendix (“J.A.”) 17. It rejected the motion based on 

adjustment of status because Turnbo had failed to submit required evidence supporting 

the bona-fide nature of her marriage that constituted the basis for the adjustment of status. 

J.A. 17. The BIA also rejected Turnbo’s argument that she qualifies for a waiver of 

inadmissibility under section 212(h) because the provision only pertains to individuals 

who have committed “a single offense of simple possession of 30 grams or less of 

marijuana,” whereas Turnbo was convicted of possession with intent to distribute 

cocaine. J.A. 18.

Turnbo filed a motion to reconsider the BIA’s April 27, 2016 decision. She 

continued to argue that she was eligible for a waiver under section 212(h). Moreover, she 

contended that her convictions were not aggravated felonies under 8 U.S.C. 

§ 1101(a)(43)(B) and § 1101(a)(43)(U). Finally, she argued that her prior counsel, who 

represented her in front of the IJ, was ineffective and that as a result, she should not be 

bound by the concession of inadmissibility made by that counsel.1 The BIA denied this 

motion on August 26, 2016. J.A. 13-14. It noted that Turnbo’s continued assertion that 

she is eligible for a waiver under section 212(h) is erroneous and that she failed to 

identify any material error of fact in the BIA’s April 27, 2016 decision on this issue. It 

rejected her ineffective assistance of counsel claim because she failed to raise it in her 

 

1 Turnbo did not seek reconsideration of the BIA’s determination that she has not met her 

burden in showing that her marriage is bona fide. 
4

first motion to reopen and because to the extent she is attempting to file a second motion 

to reopen, such a motion would be time- and number-barred. It concluded by noting that 

Turnbo also has not met the requirements for equitable tolling of her ineffective 

assistance claim. J.A. 14. 

Turnbo timely filed a petition for review of the BIA’s August 26, 2016 decision.

II.

The BIA has jurisdiction to review motions to reopen and motions for 

reconsideration pursuant to 8 C.F.R. § 1003.2. We have jurisdiction over a timely filed 

petition for review under 8 U.S.C. §§ 1252(a)(1) & (b)(1). “We review a BIA denial of a 

motion to reconsider for abuse of discretion.” Castro v. Attorney Gen. of U.S., 671 F.3d 

356, 364–65 (3d Cir. 2012).2 The BIA abuses its discretion when its actions are 

“arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 

2004), as amended (Dec. 3, 2004) (quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 

1994)). However, we review constitutional claims and questions of law, including claims 

for ineffective assistance of counsel, de novo. Fadiga v. Att’y Gen., 488 F.3d 142, 153 

(3d Cir. 2007).

III.

 

2 Although we only review the BIA’s August 26, 2016 order denying Turnbo’s motion 

for reconsideration, “‘[b]y its very nature, a motion for reconsideration alleges defects of 

some sort in the underlying decision by the BIA,’ such that judicial review of the denial 

of a motion for reconsideration ‘ordinarily requires some review of the underlying 

decision.’” Castro v. Attorney Gen. of U.S., 671 F.3d 356, 364–65 (3d Cir. 2012)

(quoting Esenwah v. Ashcroft, 378 F.3d 763, 765 (8th Cir. 2004)).
5

The BIA did not abuse its discretion in denying Turnbo’s motion for 

reconsideration. The motion did not conform to the requirements of 8 C.F.R. § 1003.2 

(b)(1), as it did not specify any errors of law or fact in the April 27, 2016 BIA decision. 

Turnbo merely reiterated her argument that she is subject to a waiver of inadmissibility 

under section 212(h), which the BIA rejected in its April 27, 2016 decision. What she 

did not do, however, is identify any error in the BIA’s conclusion that because her 

offenses were for possession with intent to distribute cocaine, not simple possession of 30 

grams or less of marijuana, she is not entitled to a waiver. 

Turnbo also reiterated the argument that her convictions do not qualify as 

aggravated felonies. But in its April 27, 2016 decision, the BIA did not and needed not 

make any conclusion regarding this issue because Turnbo never challenged her status as 

an alien convicted of a controlled substance offense, pursuant to 8 U.S.C § 

1227(a)(2)(B)(i). This status renders her inadmissible, see 8 U.S.C. § 

1182(a)(2)(A)(i)(II), and ineligible for an adjustment of status, see 8 U.S.C. § 1255(a), 

regardless of whether she was also inadmissible as an alien having been convicted of 

aggravated felonies.3 

 

3 Turnbo also argues in this petition that the BIA’s denial of her motion to reconsider 

prevented her from seeking cancellation of removal based on hardship to her three United 

States citizen children, two of whom suffer from learning disabilities. However, Turnbo 

never requested cancellation of her order of removal in either her motion to reopen or her 

motion for reconsideration. Therefore, her request for relief is not properly before us.
6

Turnbo’s ineffective assistance of counsel claim also fails. The BIA properly 

denied this motion to reopen as time- and number-barred.4 A motion to reopen, which

must be based on new facts that could not have been presented previously, must be filed 

not later than 90 days of the final agency decision. 8 C.F.R. § 1003.2(c)(1)-(2). 

Moreover, an applicant can only file one motion to reopen, absent special circumstances. 

Id. Turnbo, who filed this motion nearly a year late and as a second successive motion to 

reopen, has not met these procedural requirements. Nor is equitable tolling available, as 

such an applicant must show due diligence “over the entire period for which tolling is 

desired.” Alzaarir v. Attorney Gen. of U.S., 639 F.3d 86, 90 (3d Cir. 2011). Turnbo 

failed to argue before the BIA that she exercised due diligence, and the BIA concluded 

that she is not eligible for equitable tolling. Turnbo’s new arguments regarding her 

alleged “reasonable diligence” is beyond our jurisdiction as she did not raise them before 

the BIA. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only 

if . . . the alien has exhausted all administrative remedies available to the alien as of 

right.”).

 

4 Turnbo is incorrect to assert that her ineffective assistance claim was a motion for 

reconsideration rather than a motion to reopen. She first brought this claim before the 

BIA on May 13, 2016, after her initial motion to reopen, which was denied on April 27, 

2016. Turnbo could not have asked the BIA to reconsider an issue that she had not 

previously raised.
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IV.

For the foregoing reasons, we will deny Turnbo’s petition for review of the BIA 

order dated August 26, 2016.