### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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, pe ti t i ons 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 ass i s tance of counsel. Moreover, he asserts that since the U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D July 24, 2 012 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-60627 Document: 00511931369 Page: 1 Date Filed: 07/24/2012No. 11-60627

BIA dismi s s ed 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 (201 0) , Sh e p a rd v. United States , 544 U.S. 13 (2005), and Martinez v. Mukasey , 519 F.3d 532 (5th Cir. 2 0 0 8) , 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. 20 06). 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 h i s 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 whethe r 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 i n r a ising his ineffective assistance claim, “a request for equitable tollin g o f a time- or number-barred motion to reopen on the basis of ineffective assistance of counsel is in essence an

a r gu m e n t that the BIA should have exercised its discretion to reopen th e proceeding sua sponte based upon the doctrine of equitable tolling,” whic h i s 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 s o u ght 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 th u s i s n ot eligible for asylum or withholding of removal. See Mwembie v. Gonzales , 443 F.3d 405, 410

n . 9 ( 5 th Cir. 2006); Zhang v. Gonzales , 432 F.3d 339, 344 (5th Cir. 20 0 5 )

. Additionally, Gonzalez did not establish that any torture would be caused by or acquiesced to by the Mexican government, and thus he is not entitl e d 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 d e n i e d due process when the BIA failed to give him notice of its intent t o d o s o . Th e BIA thus did not abuse its discretion in denying th e motion to reopen on the basis of changed country conditions. See Panjwani v. Gonzales , 401 F.3d 626, 632 (5 th C i r . 2 0 0 5). The petition for review is therefore denied in part. PETITION DISMISSED IN PART AND DENIED IN PAR T ; MOTION GRANTED.

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