FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 17, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-11422

Non-Argument Calendar

________________________

Agency No. A97-548-867

SALEEM PANJWANI,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(November 17, 2008)

Before DUBINA, HULL and PRYOR, Circuit Judges.

PER CURIAM:

Saleem Panjwani, a citizen of Pakistan, petitions for review of the Board of
Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”)

order denying Panjwani’s motion to reopen as time-barred. After review, we

dismiss in part and deny in part the petition.

I. BACKGROUND

In August 2004, United States Immigration and Customs Enforcement

issued a Notice to Appear, charging Panjwani with removability as an alien present

in the United States without being admitted or paroled, in violation of 8 U.S.C.

§ 1182(a)(6)(A)(i). Panjwani conceded removability and filed an application for

asylum and withholding of removal. On June 28, 2006, the date of his removal

hearing, Panjwani, represented by counsel, withdrew his application for asylum

and withholding of removal and requested voluntary departure. The IJ granted

Panjwani until October 26, 2006 to depart voluntarily and entered an alternate

order of removal to Pakistan.

On February 5, 2007, Panjwani, through new counsel, filed with the IJ a

motion to reopen removal proceedings. Panjwani argued that his prior counsel

gave ineffective assistance because he failed to advise Panjwani he was eligible for

an adjustment of status through his parents, who are permanent residents.

Panjwani maintained that his prior counsel’s negligence constituted exceptional

circumstances tolling the 90-day deadline for filing motions to reopen.

On February 14, 2007, the IJ denied Panjwani’s motion to reopen as time2
barred. The IJ also concluded Panjwani was statutorily ineligible for the relief

sought, and, alternatively, the IJ denied Panjwani’s motion to reopen because

Panjwani had entered the United States illegally. Panjwani appealed to the BIA.

On March 17, 2008, the BIA affirmed the IJ’s decision and dismissed

Panjwani’s appeal. The BIA concluded that the IJ correctly denied the motion to

reopen as untimely. The BIA noted that Panjwani had not alleged that any

ineffective assistance of counsel had prevented him from filing a timely motion to

reopen. Panjwani filed a petition for review with this Court.

II. DISCUSSION

Panjwani argues that his motion to reopen is not time-barred because his

counsel’s ineffective assistance equitably tolled the 90-day period for filing a

motion to reopen.

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An alien’s motion to reopen removal proceedings, filed with the IJ pursuant

to 8 U.S.C. § 1229a(c)(7)(A), “must be filed no later than 90 days of entry of a

final administrative order of removal . . . .” 8 C.F.R. § 1003.23(b)(1). Counsel’s

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ineffective assistance does not toll the 90-day time limitation for motions to

We review “only the [BIA’s] decision, except to the extent that it expressly adopts the IJ’s 1

opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review the denial of a

motion to reopen proceedings for abuse of discretion. Abdi v. U.S. Att’yGen., 430 F.3d 1148, 1149

(11th Cir. 2005).

The regulations provide four statutory exceptions to the 90-day filing deadline, none of 2

which is relevant to this case. See 8 C.F.R § 1003.23(b)(4).

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reopen. Abdi, 430 F.3d at 1150.

Here, the IJ entered its order of voluntary departure on June 28, 2006, and

Panjwani filed his motion to reopen on February 5, 2007, 220 days later. Thus,

Panjwani’s motion to reopen was not filed within the 90-day period and was

untimely. Furthermore, as Panjwani acknowledges, under our binding precedent in

Abdi, any alleged ineffective assistance by Panjwani’s counsel did not toll the 90-

day filing deadline. See id. To the extent Panjwani asks us to revisit this rule, only

this Court sitting en banc or the Supreme Court can overrule a prior panel decision.

See, e.g., United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998).

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Accordingly, we find no abuse of discretion in denying Panjwani’s motion to

reopen as time-barred.

Panjwani also argues that the BIA should have exercised its authority to

reopen his removal proceedings sua sponte because it noted in its order that he had

been “ill served” by his prior counsel. See 8 C.F.R. § 1003.2(a) (conferring upon

the BIA the power to reopen removal proceedings on its own motion). However,

we lack jurisdiction to review the BIA’s discretionary decision not to sua sponte

reopen proceedings. See Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1294 (11th Cir.

We find no merit to Panjwani’s argument that the Supreme Court in Dada v. Mukasey, ___

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U.S. ___, 128 S. Ct. 2307 (2008), overruled this Court’s prior precedent. Dada did not address

whether the 90-day filing period for motions to reopen is subject to equitable tolling based on

ineffective assistance of counsel.

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2008).

DISMISSED IN PART; DENIED IN PART.

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