### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 Me l e n d e z - Amaya is a native a nd citizen of Mexico. In September 2008, h e w a s c h arged with being subject to removal as an alien presen t i n t h e United States without having been admitted or paroled. Melendez conceded removability but maintaine d h e was eligible to adjust his status t o permanent resident under the Child Status Protection Act, Pub. L. No. 107-208, 116 S t at. 927 (2002). O n 21 April 2009, the I m m i gr a t i on Judge (IJ) U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D October 15, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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found M elendez i neligible to adjust his status and granted Melendez’ request for voluntary departure from the United States. Melendez timely appealed, a nd the Board of Immigrati on Appeals (BIA) affirmed the IJ’s decision on 30 March 2011 and dismissed the a ppeal. The BIA declined, however, to reinstate Melendez’ voluntary-departure period b ased on the BIA’s erroneous f

inding t h at Melendez had not submitted timely proof of payment of his voluntary-dep a r t u re bond, as required by 8 C.F.R. § 1240.26 (c)(3)(ii). Melendez did not seek review of the BIA’s decision. Instead, o n 16 May 2 011, Melendez filed a motion t o 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 t o r eo p e n his proceedings and remand the case to the IJ, asserting he w as eligible f or cancellation o f removal based on changed c ircumsta n ces concerning the health o f his United States citizen son. On 1 3 October 2011, the BIA denied the motion to th e e x t e n t Melendez sought r eopening t o apply for cancellation of r e m o v a l

. On the o ther hand, the BIA granted the motion i n p art for the limited purpose of reinstating voluntary departure. The BIA permitted Melendez t o voluntarily depart the United States “within 60 days f

r om the date of this order or a ny extension beyond that time as may be granted by the Department of Homeland Security”. Melendez d i d not seek review of the BIA’s decision. On 10 February 2012, Melendez filed with the B IA a motion to r eopen and reconsider. He claimed “changed circumstances” (i.e., his father’s eligibility to naturalize immediately) warranted r e consideration of his case because h e 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’ m otion, finding: as a motion to reconsider, it was untimely; and, as a motion to reopen, it was both time and
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number b arred. Additionally, the BIA found n o reason to exercise its discretion to reopen the proceedings sua sponte

. In this vein, the BIA no t ed Melendez’ “failure to depart from the U n i t ed States within th e time period allowed for voluntary departure under the Board’s fin a l order rendered him statutorily ineligible for adjustment o f status for a period of 10 years from that fa i l u re to depart”. See 8 U.S.C. § 1229c(d)(1)(B). Melendez f i l e d 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 s tatu s u n d er § 1255(i) within several months. H e also challenged the B IA’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 m otion to reopen. The BIA also declined to reopen the immigration p roceedings sua sponte

. Melendez filed f or review of the BIA’s d ecision; it was consolidated here with his petition for review from the 30 July 2012 decision. Melendez petitions for review of the B IA’s 30 July 2 0 1 2 d e n i a l of his motion to reopen a nd reconsider a nd its 2 2 O c t ober 2012 denial of his subsequent motion to reopen and reconsider. See 8 U .S.C. § 1 252(b)(1); Stone v. INS , 514 U.S. 386, 394-95 (1995). The crux of Melendez’ challenge concerns the BIA’s stateme n t , i n its July 2012 decision, that Melendez is subject to the penalties under § 1 229c(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 w as a motion to reconsider, it was not timely filed from t h e d a t e o f the BIA’s last order. An alien may file o ne motion to reconsider and must do so within 30 days of the date of entry of a final administrative o rder of removal. 8 U.S.C. § 1229a(c)(6)(A)-(B);
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8 C.F.R. § 1003.2(b)(2). A s a m otion to reopen, it also was not filed timely from the proceeding it s ought t o reopen, as an alien must file a mo t i o n t o r e o pen within 90 days of the d ate on which the f inal 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 2 0 1 1 , a nd because the motion to reopen was filed more than 90 d ays after the BIA’s dismissal of the appeal on 30 March 2011, the BIA properly determined Melendez’ motions w ere 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, a n alien may file only one m o t i o n t o reopen within 90 d a y s o f t h e date of the final order of removal. 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1 003.2(c)(2). Given that Melendez filed a motion to reopen o n 16 May 2011, the current m otion t o reopen also was number barred. See8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). As for the motion filed on 2 8 August 2012, the motion to r e c o nsider was barred in p art by regulation because a party “may not s eek reconsideration of a decision denying a previous motion t o r e c o n s i d er”. 8 C.F.R. § 1003.2(b)(2). Further, to the extent Me l e n d e z s o ught reconsideration of his prior motion to reopen, he did not show any e rror in the BIA’s finding the motion to reopen, his second, was both time a nd number barred. Further, as a motion to r e open, 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 o rder, and it w as Melendez’ third motion to reopen. 8 U.S.C. § 1229a(c)(7)(A), (c)(7)(C)(i); 8 C.F.R. § 1 003.2(c)(2). Melendez h as 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 c ourt lacks jurisdiction to review such contentions. See Ramos-Bonilla v. Mukasey , 5 4 3 F.3d

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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 d e p a r t f r o m the United States during the voluntary-departure time peri o d , M e l e n d e z r e qu e s t s thi s c o urt r eview (1) the BIA’s failure to reinstate the vol u n t a r y-departure grant when it dismissed his a ppeal o n 30 M arch 2011; and (2) its reinstatement on 13 October 2011 of the voluntary-departure period, f ollowing his first m otion to reopen. Those rulings, however, are not properly before this court b ecause Melendez did not file a petition for review within 30 days of either decis i o n . Se e 8 U .S.C. § 1252(b)(1); Stone , 514 U.S. at 394-95. DISMISSED in part and DENIED in part.

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