IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60627

Summary Calendar

OCTAVIO GONZALEZ,

Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A036 741 129

Before DENNIS, CLEMENT and OWEN, Circuit Judges.

PER CURIAM:*

Octavio Gonzalez, a native and citizen of Mexico, petitions this court for

review of an order from the Board of Immigration Appeals (BIA) denying his

motion to reopen and reconsider his immigration proceedings. He maintains

that, pursuant to Lopez v. Gonzales, 549 U.S. 47 (2006), he was eligible to apply

for cancellation of removal because his prior conviction for possession of cocaine

did not constitute an aggravated felony. Gonzalez also maintains that he

received ineffective assistance of counsel. Moreover, he asserts that since the

United States Court of Appeals

Fifth Circuit

F I L E D

July 24, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 11-60627

BIA dismissed his original appeal in 2006, the conditions in Mexico have

changed and the prevalence of violence caused by drug trafficking cartels has

caused him to fear persecution and torture if he returns to that country. 

Gonzalez’s motion to file an out-of-time reply brief is granted. However,

his claims based on Padilla v. Kentucky, 130 S. Ct. 1473 (2010), Shepard v.

United States, 544 U.S. 13 (2005), and Martinez v. Mukasey, 519 F.3d 532 (5th

Cir. 2008), were raised for the first time in this court in the reply brief. We

therefore will not review these allegations. See United States v. Aguirre-Villa,

460 F.3d 681, 683 n.2 (5th Cir. 2006).

There is no dispute that Gonzalez’s motion to reopen and reconsider was

filed more than 90 days after the BIA dismissed the original appeal. As a result,

his requests to reconsider his case based on Lopez and on his allegations of

ineffective assistance were untimely. 8 C.F.R. § 1003.2(b)(2), (c)(2). We lack

jurisdiction to review the BIA’s decision whether to exercise its discretion to

reopen a proceeding sua sponte, and Gonzalez has not provided this court with

any exception permitting such a review. See Ramos-Bonilla v. Mukasey, 543

F.3d 216, 220 (5th Cir. 2008). To the extent that Gonzalez asserts that he should

have received equitable tolling for his diligence in raising his ineffective

assistance claim, “a request for equitable tolling of a time- or number-barred

motion to reopen on the basis of ineffective assistance of counsel is in essence an

argument that the BIA should have exercised its discretion to reopen the

proceeding sua sponte based upon the doctrine of equitable tolling,” which is

likewise unreviewable. Id. (internal quotation marks and citation omitted). 

Because we lack jurisdiction to review Gonzalez’s claims on these grounds, the

appeal is dismissed in part.

To the extent that Gonzalez sought reopening based on a change in

country conditions, the time limits for filing do not apply. See § 1003.2(c)(3)(ii). 

The new evidence presented by Gonzalez did not indicate that he had a wellfounded fear of persecution or that persecution was more likely than not based

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on his membership in a particular social group, and he thus is not eligible for

asylum or withholding of removal. See Mwembie v. Gonzales, 443 F.3d 405, 410

n.9 (5th Cir. 2006); Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). 

Additionally, Gonzalez did not establish that any torture would be caused by or

acquiesced to by the Mexican government, and thus he is not entitled to relief

pursuant to the Convention Against Torture. See 8 C.F.R. § 208.18(a)(1). 

Contrary to Gonzalez’s assertions, the BIA did not rely on evidence that was not

present in the record; he therefore was not denied due process when the BIA

failed to give him notice of its intent to do so. The BIA thus did not abuse its

discretion in denying the motion to reopen on the basis of changed country

conditions. See Panjwani v. Gonzales, 401 F.3d 626, 632 (5th Cir. 2005). The

petition for review is therefore denied in part.

PETITION DISMISSED IN PART AND DENIED IN PART; MOTION

GRANTED.

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