NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 12-3805 ___________

ZYGMUNT RAKOWSKI, a/k/a Zygmint Rakowski, a/k/a Zygmut Rakowski,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

Respondent ____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A013-898-711) Immigration Judge: Honorable Annie S. Garcy ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) March 13, 2013

Before: AMBRO, JORDAN and BARRY, Circuit Judges

(Opinion filed March 14, 2013) ___________

OPINION ___________

PER CURIAM

Zygmunt Rakowski petitions for review of a decision by the Board of Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.

Rakowski, a native of Poland, entered the United States in 1964 as a permanent

resident. On October 11, 1985, Rakowski pleaded guilty in the United States District

Court for the District of New Jersey to conspiracy to distribute and possess with intent to

distribute narcotic drug substances in violation of

. A.R. at 241. In April

1996, he was convicted after a jury trial of two counts of possession of a controlled

dangerous substance. A.R. at 243-46. In May 1997, Rakowski was found guilty of

possession of marijuana in the Municipal Court in New Jersey. A.R.at 242.

In 2008, he was charged as removable for having a conviction relating to a

controlled substance and as an aggravated felon for a drug-trafficking offense. A.R. at

275-77. From notations on the charge in the record, it appears that Rakowski conceded

removability as to the controlled substance ground but denied that he was an aggravated

felon. A.R. at 277. He applied for cancellation of removal. In February 2009, the IJ

found Rakowski removable, denied his application for cancellation of removal, and

ordered him removed to Poland. A.R. at 93.

In April 2012, Rakowski filed a motion to reopen. He asked to apply for

adjustment of status as the spouse of a citizen. The IJ denied the motion to reopen. She

determined that he was ineligible to adjust his status because he had not shown that his

convictions had been vacated. The BIA dismissed Rakowski’s appeal. It concluded that

the motion to reopen was untimely and noted that Rakowski had not applied for asylum

or argued changed country conditions. The BIA noted that Rakowski made general 2 references to ineffective assistance of prior counsel but had not made specific allegations

or complied with the requirements of Matter of Lozada,

(BIA

1988). The BIA also determined sua sponte reopening was not warranted because

Rakowski had not shown exceptional circumstances. Rakowski filed a petition for

review.

We review the denial of a motion to reopen for abuse of discretion. Filja v.

Gonzales,

(3d Cir. 2006). Under this standard, we may reverse the

BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft,

(3d Cir. 2002) (citation and quotation marks omitted). An alien

generally may file only one motion to reopen, and must file the motion “within 90 days

of the date of entry of a final administrative order of removal.” 8 U.S.C.

§ 1229a(c)(7)(C)(i). There is an exception to the time and number requirements for

motions that seek to apply for asylum relying on evidence of changed circumstances

arising in the country of nationality. Id. at § 1229a(c)(7)(C)(ii). Because Rakowski is

removable on the basis of his conviction relating to a controlled substance offense, see id.

at § 1182(a)(2)(A)(i)(II), we lack jurisdiction to review his final order of removal, id. at §

1252(a)(2)(C), except to the extent that he raises constitutional claims or questions of

law. Id. at § 1252(a)(2)(D).

Rakowski argues that a motion to reopen is timely if it is filed within ninety days

or relies on “new evidence sufficient to warrant consideration.” Pet’r’s Br. at 12.

However, the motion to reopen must be both timely filed, as noted above, and state the 3 new facts that will be proven if the motion is granted. See 8 U.S.C. § 1229a(c)(7)(B),

(C). In his motion to reopen, Rakowski conceded that the motion was untimely.1 A.R. at

65. Rakowski’s motion to reopen does not fall within the exception to the timeliness

requirement because he is not seeking to apply for asylum based on changed country

conditions. The BIA did not err in denying the motion to reopen as untimely.2

For the above reasons, we will deny the petition for review.

1 Even if the proceedings had been reopened, Rakowski is not eligible for adjustment of status as an aggravated felon.

(h); Martinez v. Att’y Gen.,

(3d Cir. 2012). 2 Rakowski argues that the BIA’s decision was arbitrary because the hearings before the IJ were not transcribed. However, as noted by the Government, the BIA informed him that he could contact the Immigration Court to listen to the tapes of the hearings. A.R. at 34. Rakowski does not indicate that he attempted to do so. The lack of hearing transcripts does not provide Rakowski with a basis for reopening his immigration proceedings. 4