IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-60666

Summary Calendar

MARCELINO MELENDEZ-AMAYA,

Petitioner

v.

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

Respondent

Petitions for Review of an Order of the

Board of Immigration Appeals

BIA No. A079 104 545

Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Marcelino Melendez-Amaya is a native and citizen of Mexico. In

September 2008, he was charged with being subject to removal as an alien

present in the United States without having been admitted or paroled. 

Melendez conceded removability but maintained he was eligible to adjust his

status to permanent resident under the Child Status Protection Act, Pub. L. No.

107-208, 116 Stat. 927 (2002). On 21 April 2009, the Immigration Judge (IJ)

United States Court of Appeals

Fifth Circuit

F I L E D

October 15, 2013

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.

 Case: 12-60666 Document: 00512407527 Page: 1 Date Filed: 10/15/2013
No. 12-60666

found Melendez ineligible to adjust his status and granted Melendez’ request for

voluntary departure from the United States. 

Melendez timely appealed, and the Board of Immigration Appeals (BIA)

affirmed the IJ’s decision on 30 March 2011 and dismissed the appeal. The BIA

declined, however, to reinstate Melendez’ voluntary-departure period based on

the BIA’s erroneous finding that Melendez had not submitted timely proof of

payment of his voluntary-departure bond, as required by 8 C.F.R. § 1240.26

(c)(3)(ii). Melendez did not seek review of the BIA’s decision.

Instead, on 16 May 2011, Melendez filed a motion to reopen with the BIA. 

He first claimed the BIA had incorrectly denied him reinstatement of voluntary

departure and asked the BIA to “reinstate the voluntary departure granted by

the [IJ]”. Second, Melendez asked the BIA to reopen his proceedings and

remand the case to the IJ, asserting he was eligible for cancellation of removal

based on changed circumstances concerning the health of his United States

citizen son. 

On 13 October 2011, the BIA denied the motion to the extent Melendez

sought reopening to apply for cancellation of removal. On the other hand, the

BIA granted the motion in part for the limited purpose of reinstating voluntary

departure. The BIA permitted Melendez to voluntarily depart the United States

“within 60 days from the date of this order or any extension beyond that time as

may be granted by the Department of Homeland Security”. Melendez did not

seek review of the BIA’s decision. 

On 10 February 2012, Melendez filed with the BIA a motion to reopen and

reconsider. He claimed “changed circumstances” (i.e., his father’s eligibility to

naturalize immediately) warranted reconsideration of his case because he might

soon become eligible to adjust his status to a permanent resident under 8 U.S.C.

§ 1255(i). 

On 30 July 2012, the BIA denied Melendez’ motion, finding: as a motion

to reconsider, it was untimely; and, as a motion to reopen, it was both time and

2

 Case: 12-60666 Document: 00512407527 Page: 2 Date Filed: 10/15/2013
No. 12-60666

number barred. Additionally, the BIA found no reason to exercise its discretion

to reopen the proceedings sua sponte. In this vein, the BIA noted Melendez’

“failure to depart from the United States within the time period allowed for

voluntary departure under the Board’s final order rendered him statutorily

ineligible for adjustment of status for a period of 10 years from that failure to

depart”. See 8 U.S.C. § 1229c(d)(1)(B). Melendez filed for review of the BIA’s

decision. 

On 28 August 2012, Melendez filed a third motion with the BIA. He again

claimed he would be eligible for adjustment of status under § 1255(i) within

several months. He also challenged the BIA’s statement in its previous decision

that he was ineligible to adjust status based on his failure to timely depart. 

On 22 October 2012, the BIA denied Melendez’ motion, which it construed

as both a motion to reconsider and a motion to reopen. The BIA also declined to

reopen the immigration proceedings sua sponte. Melendez filed for review of the

BIA’s decision; it was consolidated here with his petition for review from the 30

July 2012 decision. 

Melendez petitions for review of the BIA’s 30 July 2012 denial of his

motion to reopen and reconsider and its 22 October 2012 denial of his

subsequent motion to reopen and reconsider. See 8 U.S.C. § 1252(b)(1); Stone v.

INS, 514 U.S. 386, 394-95 (1995). The crux of Melendez’ challenge concerns the

BIA’s statement, in its July 2012 decision, that Melendez is subject to the

penalties under § 1229c(d)(1)(B), based on his failure to depart within the time

period allowed for voluntary departure.

Melendez has not shown the BIA abused its discretion when it denied his

motions to reconsider and reopen. See Zhao v. Gonzales, 404 F.3d 295, 303 (5th

Cir. 2005). First, to the extent the motion dated 10 February 2012 was a motion

to reconsider, it was not timely filed from the date of the BIA’s last order. An

alien may file one motion to reconsider and must do so within 30 days of the date

of entry of a final administrative order of removal. 8 U.S.C. § 1229a(c)(6)(A)-(B);

3

 Case: 12-60666 Document: 00512407527 Page: 3 Date Filed: 10/15/2013
No. 12-60666

8 C.F.R. § 1003.2(b)(2). As a motion to reopen, it also was not filed timely from

the proceeding it sought to reopen, as an alien must file a motion to reopen

within 90 days of the date on which the final administrative decision is entered.

8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Because the motion to

reconsider was filed more than 30 days after the BIA’s last order of 13 October

2011, and because the motion to reopen was filed more than 90 days after the

BIA’s dismissal of the appeal on 30 March 2011, the BIA properly determined

Melendez’ motions were untimely. See 8 U.S.C. § 1229a(c)(6)(A)-(B), (c)(7)(C)(i);

8 C.F.R. § 1003.2(b)(2), (c)(2). Moreover, an alien may file only one motion to

reopen within 90 days of the date of the final order of removal. 8 U.S.C.

§ 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). Given that Melendez filed a motion to

reopen on 16 May 2011, the current motion to reopen also was number barred. 

See 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2).

As for the motion filed on 28 August 2012, the motion to reconsider was

barred in part by regulation because a party “may not seek reconsideration of a

decision denying a previous motion to reconsider”. 8 C.F.R. § 1003.2(b)(2). 

Further, to the extent Melendez sought reconsideration of his prior motion to

reopen, he did not show any error in the BIA’s finding the motion to reopen, his

second, was both time and number barred. Further, as a motion to reopen, the

28 August 2012 filing was barred by time and numerical limitations, as it was

not filed within 90 days of the of the BIA’s final order, and it was Melendez’ third

motion to reopen. 8 U.S.C. § 1229a(c)(7)(A), (c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 

Melendez has not shown the BIA abused its discretion by denying his motions

to reopen and reconsider as time and number barred.

To the extent Melendez claims the BIA abused its discretion by refusing

sua sponte to reopen the proceedings based on exceptional circumstances

warranting equitable tolling of the time and number limitations, this court lacks

jurisdiction to review such contentions. See Ramos-Bonilla v. Mukasey, 543F.3d

4

 Case: 12-60666 Document: 00512407527 Page: 4 Date Filed: 10/15/2013
No. 12-60666

216, 219-20 (5th Cir. 2008); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50

(5th Cir. 2004).

Finally, in his attempt to overturn the BIA’s statement in its 30 July 2012

decision regarding the penalties for failing to depart from the United States

during the voluntary-departure time period,Melendez requests this court review

(1) the BIA’s failure to reinstate the voluntary-departure grant when it

dismissed his appeal on 30 March 2011; and (2) its reinstatement on 13 October

2011 of the voluntary-departure period, following his first motion to reopen. 

Those rulings, however, are not properly before this court because Melendez did

not file a petition for review within 30 days of either decision. See 8 U.S.C.

§ 1252(b)(1); Stone, 514 U.S. at 394-95.

DISMISSED in part and DENIED in part.

5

 Case: 12-60666 Document: 00512407527 Page: 5 Date Filed: 10/15/2013