* On February 4, 2005, Alberto R. Gonzales became the United States

Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Mr. Gonzales is substituted fo r John Ashcroft as the Respondent in this action.

** After examining the brief and appellate record, thi s panel has determined unanimously to grant the petitioner’s request for adecision without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### December 12, 2005

Clerk of Court PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ABDALLAH HASSAN MAHAMAT, Petitioner,

v. ALBERTO R. GONZALES, Attorney General, * Respondent. No. 04-9571

PETITION FOR REVIEW FROM THE BOARD OF

IMMIGRATION APPEALS (No. A76-912-015)
Hakeem Ishola, Salt Lake City, Utah, for Petitioner

. ** Richard M. Evans, Marshall Tamor Golding, U.S. Department of Justice, Office of Immigration Litigation, Washington D.C., for Res pondent.-2-

Before TYMKOVICH , PORFILIO , and BALDOCK , Circuit Judges.

TYMKOVICH , Circuit Judge.

This petition for review challenges the Board of Im migration Appeals’ (BIA’s) decision rejecting petitioner Abdallah Hass an Mahamat’s ineffectiveassistance-of-counsel claim. We deny the petition. B ACKGROUND In 1998, Mr. Mahamat, a native and citizen of Chad, entered the United States on a non-immigrant tourist visa. He overstayed his visa and married Safia Ibrahim, a Sudanese national, who has since become a U.S. citizen. In 1999, Mr. Mahamat appeared before an asylum offi cer and submitted an application prepared by attorney Steven R. Lawrence for asylum, restriction on removal and protection against torture. The applic ation was based on Mr. Mahamat’s Gorane ethnicity and his political ti es and activities in opposition to Chadian president Idriss Deby. On October 23, 2 002, an Immigration Judge (IJ) denied the application. The IJ ordered Mr. Ma hamat removed to Chad, but granted him voluntary departure until November 22, 2002. Mr. Mahamat retained Mr. Lawrence to appeal. On either November 21 or 22, 2002, Mr. Lawrence dep osited a notice of appeal with United Parcel Service (UPS) for next day delivery to the Board of-3-

Immigration Appeals (BIA). But because of a shippi ng delay, the BIA did not receive the notice until November 26. On January 2 8, 2003, the BIA dismissed the appeal as untimely, explaining that the notice was due no later than November 22, 2002. Mr. Lawrence then filed a motion to reconsider, stating that he prepared the notice of appeal on November 21, 2002, and deposite d it with UPS on November 22 for next day delivery. The Department of Homeland Security filed an opposition to reconsideration, noting that underMr. Lawrence’s recounting of events, the notice of appeal would have been untime ly even if properly delivered by UPS. In response, Mr. Lawrence submitted a “Corrected Affidavit,” stating that he deposited the notice with UPS on November 2 1, rather than November 22, as he had originally claimed. Mr. Lawrence furtherstated that “it was not the fault of [Mr. Mahamat] for the untimeliness of the filing but that of counsel,” and that “[Mr. Mahamat] should not be responsible for t he clear mistake of counsel.” Admin. R. at 90. In September 2003, the BIA denied the motion to reconsider, reasoning that there was “no error of law or fact” in the decision to dismiss the appeal. Id. at 93. Mr. Mahamat retained new counsel, Leonor Perretta, who filed a bar complaint against Mr. Lawrence. Mr. Mahamat execut ed a supporting affidavit, stating that in a discussion with Mr. Lawrence in D ecember 2002 or January3 A motion to reopen seeks to present evidence that “ is material and was not

available and could not have been discovered or pre sented at the former hearing.” 8 C.F.R. § 1003.2(c)(1); see also 8 U.S.C. § 1229a(c)(7)(B). A motion to reconsider, on the other hand, is available to rais e errors of fact or law committed by the BIA in its prior decision, and must be suppo rted by pertinent authority. 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1). In Galvez Pineda v. Gonzales , 427 F.3d 833, 837 (10th Cir. 2005), we observed t hat “[t]he appropriate method of present[ing] [an ineffective assistance c laim] is a motion to reopen the (continued...) -4- 2003, Mr. Lawrence faulted UPS for the notice of ap peal’s late delivery and indicated that he would file a motion to reconsiderwith the BIA. Mr. Mahamat contended that Mr. Lawrence rendered ineffective as sistance in appealing late. Next, in November 2003, Ms. Perretta filed with the BIA a “Motion to Accept Late Filed Appeal or Reinstate Appeal.” Id. at 39. On June 22, 2004, the BIA construed the motion as seeking reconsiderationand denied it, stating that the motion failed to meet the requirements of Matter of Lozada , 19 I. & N. Dec. 637 (BIA 1988), and that the motion was untimely an d number-barred. Mr. Mahamat retained new counsel and petitioned thi s court for review. D ISCUSSION Mr. Mahamat characterizes his “Motion to Accept Lat e Filed Appeal or Reinstate Appeal” as a motion to reopen, rather tha n a motion for reconsideration, which, he acknowledges, would be number-barred, see 8 C.F.R. § 1003.2(b)(2) (stating that “[a] party may file only one motion t o reconsider”). Even if we accept that characterization, 3 we must still deny the petition.3 (...continued)

case before the BIA.”

4 A motion for reconsideration does not affect a remo val order’s finality. Stone v. INS, 514 U.S. 386, 405 (1995). -5- The decision to grant or deny a motion to reopen pr oceedings is within the BIA’s discretion. 8 C.F.R. § 1003.2(a). We will r everse only if the BIA’s “decision provides no rational explanation, inexpli cably departs from established policies, is devoid of any reasoning, or contains o nly summary or conclusory statements.” Osei v. INS , 305 F.3d 1205, 1208 (10th Cir. 2002) (quotation m arks omitted). A motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendere d.” 8 C.F.R. § 1003.2(c)(2); see also 8 U.S.C. § 1229a(c)(7)(C)(i). Here, Mr. Mahamat’s motion was filed over nine months after the BIA rendered its final d ecision dismissing Mr. Mahamat’s appeal. 4 Consequently, the motion was untimely. Mr. Mahamat asserts, however, that the BIA should h ave equitably tolled the filing time. “For an untimely claim to receive the benefit of equitable tolling, . . . an alien must demonstrate not only that the a lien’s constitutional right to due process has been violated by the conduct of counsel , but that the alien has exercised due diligence in pursuing the case during the period the alien seeks to toll.” Iavorski v. INS , 232 F.3d 124, 135 (2d Cir. 2000), see also Riley v. INS ,-6-

310 F.3d 1253, 1258 (10th Cir. 2002) (joining the S econd and Ninth Circuits in holding that motions to reopen are subject to equit able tolling). The issue of equitable tolling must be exhausted through the BIAin order for this court to reach the issue. See 8 U.S.C. § 1252(d)(1) (providing that “[a] court m ay review a final order of removal only if . . . the alien ha s exhausted all administrative remedies available to the alien as of right”); Taniguchi v. Schultz , 303 F.3d 950, 955 (9th Cir. 2002) (stating that equitable tolling of the time to reopen is not available where tolling “was not argued to the BIA nor discussed by the BIA”); see also Galvez Pineda v. Gonzales , 427 F.3d 833, 837 (10th Cir. 2005) (observing that a “[f]ailure to exhaust administrat ive remedies by not first presenting a claim to the BIA deprives this court o f jurisdiction to hear it”). Nowhere in the “Motion to Accept Late Filed Appeal or Reinstate Appeal,” which was filed over six months after the deadline for se eking reopening, did Mr. Mahamat seek a filing extension, ask the BIA to equitably toll the deadline, or even acknowledge that the motion was late. Beca use Mr. Mahamat did not exhaust the equitable tolling issue through the BIA , it was not preserved for our review, and we lack jurisdiction to consider the is sue. We also lack jurisdiction insofar as Mr. Mahamat ar gues that the BIA should have certified his case for review under 8 C .F.R. § 1003.1(c). That regulation provides:-7-

The . . . [BIA] may in any case arising under parag raph (b) of this section [defining the BIA’s appellate jurisdiction] certify such case to the [BIA]. The [BIA] in its discretion may revi ew any such case by certification without regard to the [notice] pro visions of § 1003.7 if it determines that the parties have already been given a fair opportunity to make representations before the [BIA ] regarding the case . . . . 8 C.F.R. § 1003.1(c). “The BIA occasionally avoids an untimeliness problem by dismissing an untimely appeal and accepting the cas e on certification . . . .” Shamsi v. INS , 998 F.2d 761, 762 n.2 (9th Cir. 1993) (discussing § 1003.1(c)’s predecessor, 8 C.F.R. § 3.1(c)); see also Desta v. Ashcroft , 329 F.3d 1179, 1185 (10th Cir. 2003) (recognizing that certification al lows the BIA to review “a ‘case’ that otherwise could not properly be heard”). But Mr. Mahamat does not contend that he ever asked the BIA for certification. See Galvez Pineda , 427 F.3d at 837 (discussing exhaustion requirement). Nor does he s uggest any standards to judge the BIA’s exercise of discretion. See Heckler v. Chaney , 470 U.S. 821, 830 (1985) (“[I]f no judicially manageable standards ar e available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for abuse of discretion.” (quotation marks omitted)); see, e.g. , Infanzon v. Ashcroft , 386 F.3d 1359, 1361 (10th Cir. 2004) (holding that this court lacked jurisdiction to consider whether the B IA should have sua sponte reopened proceedings under 8 C.F.R. § 1003.2(a), “b ecause there are no standards-8-

by which to judge the agency’s exercise of discreti on”). Consequently, the certification issue is beyond review. C ONCLUSION The BIA correctly decided that Mr. Mahamat’s “Motio n to Accept Late Filed Appeal or Reinstate Appeal” was untimely. As such, we need not decide whether the BIA abused its discretion in finding th e motion number-barred or non-compliant with Matter of Lozada , 19 I. & N. Dec. 637 (BIA 1988). The petition for review is DENIED. The Attorney Ge neral’s motion for summary denial is also DENIED. See 10th Cir. R. 27.2(A)(1).