This petition for review challenges the Board of Immigration Appeals’ (BIA’s) decision rejecting petitioner Abdallah Hassan Mahamat’s ineffective-assistance-of-counsel claim. We deny the petition.
BACKGROUND
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 Saña Ibrahim, a Sudanese national, who has since become a U.S. citizen.
In 1999, Mr. Mahamat appeared before an asylum officer and submitted an application- prepared by attorney Steven R. Lawrence for asylum, restriction on removal and protection against torture. The application, was based on Mr. Mahamat’s Gorane ethnicity and his political ties and activities in opposition to Chadian president Idriss Deby. On October 23, 2002, an Immigration Judge (IJ) denied the application. The IJ ordered Mr. Mahamat 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 deposited a notice of appeal with United Parcel Service (UPS) for next day delivery to the Board of Immigration Appeals (BIA). But because of a shipping delay, the BIA did not receive the notice until November 26. On January 28, 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 deposited it with UPS on November 22 for next day delivery. The Department of Homeland Security filed an opposition to reconsideration, noting that under Mr. Lawrence’s recounting of events, the notice of appeal would have been untimely even if properly delivered by UPS. In response, Mr. Lawrence submitted a “Corrected Affidavit,” stating that he deposited the notice with UPS on November 21, rather than November 22, as he had originally claimed. Mr. Lawrence further stated that “it was not the fault of [Mr. Maha-mat] for the untimeliness of the filing but that of counsel,” and that “[Mr. Mahamat] should not be responsible for the 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 hew counsel, Leonor Perretta, who filed a bar complaint against Mr. Lawrence. Mr. Mahamat executed a supporting affidavit, stating that in a discussion with Mr. Lawrence in December 2002 or January 2003, Mr. Lawrence faulted UPS for the notice of appeal’s late delivery and indicated that he would file a motion to reconsider with the BIA. Mr. Mahamat contended that Mr. Lawrence rendered ineffective assistance in appealing late.
Next, in November 2003, Ms. Perretta filed with the BIA a “Motion to Accept Late. Filed Appeal or Reinstate Appeal.” *1283 Id. at 39. On June 22, 2004, the BIA construed the motion as seeking reconsideration and 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 and number-barred. Mr. Mahamat retained new counsel and petitioned this court for review.
DISCUSSION
Mr. Mahamat characterizes his “Motion to Accept Late Filed Appeal or Reinstate Appeal” as a motion to reopen, rather than 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 to reconsider”). Even if we accept that characterization, 3 we must still deny the petition.
The decision to grant or deny a motion to reopen proceedings is within the BIA’s discretion. 8 C.F.R. § 1003.2(a). We will reverse only if the BIA’s “decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.”
Osei v. INS,
A motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2); see also 8 U.S.C. § 1229a(e)(7)(C)(i). Here, Mr. Mahamat’s motion was filed over nine months after the BIA rendered its final decision dismissing Mr. Mahamat’s appeal. Consequently, the motion was untimely. 4
Mr. Mahamat asserts, however, that the BIA should have equitably tolled the filing time. “For an untimely claim to receive the benefit of equitable tolling, ... an alien must demonstrate not only that the alien’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,
We also lack jurisdiction insofar as Mr. Mahamat argues that the BIA should have certified his case for review under 8 C.F.R. § 1003.1(c). That regulation provides:
The ... • [BIA] may in any case arising under paragraph (b) of this section [dé-fining the BIA’s appellate jurisdiction] certify such case to the [BIA], The [BIA] in its discretion may review any such case by certification without regard to the [notice] provisions 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 case on certification.... ”
Shamsi v. INS,
CONCLUSION
The BIA correctly decided that Mr. Ma-hamat’s “Motion to Accept Late Filed Appeal or Reinstate Appeal” was untimely. As such, we need not decide whether the BIA abused its discretion in finding the 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 General’s motion for summary denial is also DENIED. See 10th Cir. R. 27.2(A)(1).
Notes
. A motion to reopen seeks to present evidence that "is material and was not available and could not have been discovered or presented 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 raise errors of fact or law committed by the BIA in its prior decision, and must be supported by pertinent authority. 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1). In
Galvez Pineda v. Gonzales,
. A motion for reconsideration does not affect a removal order's finality.
Stone v. INS,