OPINION
Devon Nunes, proceeding pro se, petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying his motion to reopen his immigration proceedings. We will deny the рetition for review.
Nunes is a native and citizen of Jamaica. He entered the United States in 1988 as a non-immigrant student and attended Tem-
The IJ denied Nunes’ application because he had not madе the required showing that his removal would result in exceptional and extremely unusual hardship to a qualifying relative. The IJ granted Nunes voluntary departurе. On October 12, 2010, the BIA affirmed the IJ’s decision. The BIA did not reinstate the period of voluntary departure because Nunes had not paid the required bоnd. The BIA thus ordered Nunes’ removal. We dismissed Nunes’ subsequent petition for review because we lacked jurisdiction to review the BIA’s discretionary deсision that Nunes failed to show the requisite exceptional and extremely unusual hardship to a qualifying relative for cancellation of removal. See C.A. No. 10-4209.
In March 2011, Nunes filed a motion to reopen his immigration proceedings in order to apply for adjustment of status. Nunes’ wife, a United States citizеn, had filed a petition for alien relative on his behalf. Because Nunes filed his motion more than 90 days after entry of his final removal order on Oсtober 12, 2010, the BIA denied the motion as untimely. The BIA also denied Nunes’ request that the BIA sua sponte reopen his proceedings, finding no exceptiоnal circumstances in his case. The BIA explained that it appeared that Nunes was barred from applying for adjustment of status for ten years because he did not post a voluntary departure bond. Even if not barred, the BIA stated that Nunes has been married since 1996 and he could have pursued adjustment of status earlier. The BIA noted that Nunes’ wife had previously filed a visa petition, but the petition was denied for failure to appеar for an interview. The BIA further stated that Nunes did not explain why he did not try to regularize his status before 2007. Nunes filed a pro se petition for review.
As a preliminary matter, we deny the Government’s motion to dismiss the petition for review for lack of jurisdiction. The Government is correct that we lack jurisdiсtion to review the BIA’s discretionary decision declining to sua sponte reopen Nunes’ immigration proceedings. Pllumi v. Att’y Gen.,
Nunes argues in his brief that the BIA declined to sua sponte reopen his proceedings based on the erroneous belief that it would be futile to do so in light of his failure to post a voluntary departure bond and his resulting ineligibility for adjustment of status. Relying on Mahmood v. Holder,
In Mahmood, an alien who was granted voluntary departure filed a motiоn to reopen his proceedings before the voluntary departure period expired but more than 90
The present case is distinguishable from Mahmood. The BIA noted in its decision that it appeared Nunes is barred from obtaining adjustment status, but ruled that, even if he is not barred, he did not show exceptional circumstances warranting sua sponte reopening. As noted above, the BIA explained Nunes had been married to his wife since 1996 and he had not sufficiently addressed why he had not already pursued or obtained adjustment of status. Unlike in Mahmood, where the court found it unclear whether the agency declined to reopen sua sponte because it believed doing so would be futile, the BIA found Nunes had not shown exceptional circumstancеs warranting reopening sua sponte, assuming Nunes was not barred from obtaining adjustment of status.
Nunes also argues that the BIA denied sua sponte reoрening based on an erroneous belief that he is ineligible for adjustment of status due to the denial of an earlier petition for alien relativе filed on his behalf. Nunes asserts that eligibility for adjustment of status is not precluded by the denial of an earlier visa petition as a matter of law. The BIA’s decision, however, does not reflect that the BIA believed Nunes was ineligible for adjustment of status based on the denial of the earlier visa petition. The BIA merely noted the fact that an earlier visa petition had been denied in addressing Nunes’ further asserts that he was unaware that he was required to file his motion to reopen within 90 days of the final administrative order in his case and that he believed he had to pursue his appellate remedies before filing such a motion. To the extent Nunes’ assertion can be construed as an argument that the 90-day period for filing a motion tо reopen should be equitably tolled, Nunes did not seek equitable tolling before the BIA. Moreover, equitable tolling applies when a petitioner has in some extraordinary way been prevented from asserting his rights. Miller v. New Jersey State Dep’t of Corr.,
Finally, to the extent Nunes asserts in his brief that errors occurred in his underlying proceedings, such arguments are not
Accordingly, the petition for review will be denied. The Government’s motiоn for expedited consideration is denied.
Notes
. Nunes cites Mahmood v. Holder,
. The Government also argues in its brief that Mahmood does not apply because the alien in that case filed a motion to reopen before the voluntary departure period expired and Nunes did not. In light of the BIA's ruling that sua sponte rеopening is not warranted even if adjustment of status is not barred, it is unnecessary to address this argument or Nunes’ argument that he is not barred from adjustment of status based on his failure to post a bond.
. We do not consider Nunes’ additional arguments regarding equitable tolling presented for the first time in his reply brief. Common Cause of Pennsylvania v. Pennsylvania,