                                                                      [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                            No. 11-13396               FEBRUARY 8, 2012
                                        Non-Argument Calendar             JOHN LEY
                                      ________________________             CLERK


                                           Agency No. A077-485-955



DOROTHY EBOT TAMBI,

llllllllllllllllllllllllllllllllllllllll                                       Petitioner,

                                                   versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                                     Respondent.

                                     ________________________

                               Petition for Review of a Decision of the
                                    Board of Immigration Appeals
                                    ________________________

                                              (February 8, 2012)

Before BARKETT, HULL and BLACK, Circuit Judges.

PER CURIAM:

         Dorothy Ebot Tambi, a native and citizen of Cameroon, seeks review of the
Board of Immigration Appeals’s (“BIA”) denial of her second motion to reopen

the Immigration Judge’s (“IJ”) previous denial of asylum, withholding of removal,

and relief under the United Nations Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment. Tambi filed her second motion

to reopen,1 seeking the reopening of her prior application for asylum on the basis

of changed country conditions and on the basis that she received ineffective

assistance of counsel. This motion was filed with the BIA over ten years after the

original IJ decision denying her asylum application.

       Generally, an alien may file only one motion to reopen before the BIA and

such motion must be filed within ninety days of the final removal order. 8 U.S.C.

§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). It is not disputed that Tambi’s

second motion to reopen fails to meet either of these requirements.

       There are, however, several exceptions to the one motion and ninety days

time limit. See generally 8 U.S.C. § 1229a(b)(5)(C), (c)(7)(C); 8 C.F.R. §

1003.2(a), (c)(3). Pertinent to this appeal, an alien may seek reopening at any time

and without regard to any prior motions to reopen, if she can demonstrate

“changed country conditions arising in the country of nationality or the country to


       1
          Tambi filed her first motion to reopen several years earlier on the basis of her marriage
to a United States citizen, which was eventually denied by the BIA, and is not at issue in this
petition for review.

                                                 2
which removal has been ordered, if such evidence is material and was not

available and would not have been discovered or presented at the previous

proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).

Tambi sought reopening of her previous asylum application claiming that the

conditions in her home country of Cameroon had worsened. She also sought

reopening on the basis of her previous attorney’s ineffective assistance.

      We review the BIA’s denial of a motion to reopen for abuse of discretion.

Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005); see also Kucana v.

Holder, 130 S. Ct. 827, 838–39 (2010). When reviewing the denial of

discretionary relief, we consider whether there has been an exercise of discretion

and whether that exercise was “arbitrary or capricious.” Abdi, 430 F.3d at 1149.

      The BIA provided several reasons for denying reopening, which Tambi

challenges in this petition for review as follows. Tambi first argues that the BIA

improperly penalized her for not filing a subsequent asylum application with her

second motion to reopen. Although the BIA mentioned that Tambi failed to

submit a new asylum application with her motion to reopen, this was not the BIA’s

basis for denying her motion to reopen. Instead the BIA listed all of the evidence

that Tambi submitted and determined that it either had been available at the time

of her first hearing or did not demonstrate that conditions in Cameroon had

                                         3
materially worsened since her original hearing. Tambi does not challenge any of

these conclusions of the BIA in this petition. Accordingly, we find no abuse of

discretion in the BIA’s mention that Tambi did not submit a new asylum

application with her second motion.2

       Next, Tambi argues that the BIA gave undue weight to the IJ’s adverse-

credibility decision made during her original asylum proceedings. As already

mentioned, in denying Tambi’s second motion to reopen, the BIA discussed

Tambi’s evidence regarding changed country conditions and concluded that Tambi

failed to establish that conditions in Cameroon were worse than when she first

sought asylum nearly ten years earlier. Although the BIA took into consideration

the IJ’s adverse credibility determination at the earlier hearing, the BIA ultimately

denied the motion to reopen based on the lack of evidence to support changed

country conditions.

       Third, Tambi argues that due process requires reopening of her asylum

       2
          Although the governing regulations provide that an application for relief must
accompany the motion to the extent that the motion to reopen is seeking to submit an application
for relief, see 8 C.F.R. § 1003.2(c)(1), the statute only requires that the motion to reopen be
supported by affidavits and other evidence, see 8 U.S.C. § 1229a(c)(7)(B). Here, we would be
inclined to agree with Tambi that because the purpose of her motion to reopen was to supplement
an existing asylum application based on changed country conditions, she would not be required
to submit an entirely new asylum application. The BIA, however, did not deny her request to
reopen because she did not include a new asylum application with her motion, but instead
because it concluded that she failed to meet the requirements for reopening based on changed
country conditions.

                                               4
application because her previous attorneys provided ineffective assistance of

counsel. The BIA declined to reopen her application on this basis, concluding that

she failed to meet the threshold requirements for such a claim as established in

Matter of Lozada, 19 I.&N. Dec. 637, 639 (BIA 1988).3 Tambi does not

challenge the BIA’s conclusion regarding her failure to meet the requirements of

Matter of Lozada and we cannot say that the BIA abused its discretion in refusing

to reopen her asylum application on this basis.4

       Finally, Tambi asserts that she has a strong case for the exercise of

prosecutorial discretion under guidelines established by a new a working group of

the Department of Homeland Security and the Department of Justice. Tambi has



       3
          When filing a motion based on ineffective assistance, the BIA has established the
following procedural requirements: (1) the claim should be supported by an affidavit that sets
forth in detail the agreement with counsel regarding the actions to be taken, and any
representations made by counsel with regard to those actions; (2) former counsel must be
informed of the allegations and permitted an opportunity to respond; and (3) the motion should
reflect whether a grievance was filed against counsel, and if not, why not. Matter of Lozada, 19
I.&N. Dec. at 639. Our circuit has held that the Lozada procedural requirements are reasonable,
and that, at a minimum, “substantial, if not exact, compliance” with Lozada is required. Dakane
v. U.S. Att’y Gen., 371 F.3d 771, 775 (11th Cir. 2004).
       4
          Tambi urges us to reconsider our decision in Abdi v. U.S. Att’y Gen., 430 F.3d 1148,
1149–50 (11th Cir. 2005), to the extent that we stated that the ninety day motion to reopen period
is “mandatory and jurisdictional,” and thus not subject to equitable tolling. Although the BIA
cited to Abdi in denying Tambi’s request to reopen based on ineffective assistance of counsel, the
BIA primarily and properly noted that Tambi failed to comply with the requirements of Matter of
Lozada, which we cannot say is an abuse of discretion. We, therefore, need not address whether
the statement in Abdi that the ninety day motion to reopen is “mandatory and jurisdictional” is
dicta or binding circuit precedent.

                                                5
provided no authority, nor are we aware of any, that would permit a court of

appeals to grant such relief.

      PETITION DENIED.




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