Dong Lin v. Jefferson Sessions, III , 698 F. App'x 163 ( 2017 )

Case: 16-60277 Document: 00514173253 Page: 1 Date Filed: 09/27/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-60277 FILED
Summary Calendar September 27, 2017
Lyle W. Cayce
Clerk
DONG LIN,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 798 532
Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
Dong Lin, a native and citizen of China, seeks review of a decision by the
Board of Immigration Appeals (BIA), declining to exercise its discretion to
reopen his removal proceedings sua sponte, and denying, as untimely, his
statutory motion to reopen his removal proceedings. Lin contends, inter alia:
the BIA abused its discretion, because he showed both extraordinary
circumstances and prima facie eligibility for relief from removal.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
Case: 16-60277 Document: 00514173253 Page: 2 Date Filed: 09/27/2017
No. 16-60277
Although he concedes sua sponte motions to reopen are solely within the
discretion of the immigration judge or BIA, Lin asserts, for the first time on
appeal, that this court can review a claim for equitable tolling. Lin is correct
we lack jurisdiction to review the BIA’s decision not to exercise its discretion
to reopen removal proceedings sua sponte. Enriquez-Alvarado v. Ashcroft, 371
F.3d 246, 250 (5th Cir. 2004); Mata v. Lynch, 135 S. Ct. 2150, 2155 (2015). But,
we also lack jurisdiction over his assertion he was entitled to equitable tolling
of the limitations period for his statutory motion to reopen, because he failed
to exhaust administrative remedies under 8 U.S.C. § 1252(d). Claudio v.
Holder, 601 F.3d 316, 318 (5th Cir. 2010). Along that line, petitioner must
“fairly present an issue to the BIA to satisfy [8 U.S.C.] § 1252(d)’s exhaustion
requirement”. Id. (quoting Omari v. Holder, 562 F.3d 314, 321 (5th Cir. 2009)).
Accordingly, the petition is therefore dismissed in part for lack of jurisdiction.
Petitioner may only file a motion to reopen within 90 days of the removal
order petitioner seeks to reopen. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). The BIA dismissed Lin’s appeal in November 2008, and Lin did
not file his motion to reopen until December 2015. Although we have
jurisdiction to review the BIA’s denial of Lin’s statutory motion to reopen, see
Mata, 135 S. Ct. at 2154–55, Lin filed his motion more than 90 days after the
BIA’s 2008 decision. Because he asserts no exceptions to the time bar, other
than his unexhausted claim for equitable tolling discussed above, he has not
demonstrated the BIA abused its discretion by denying, as time-barred, his
statutory motion to reopen. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005)
(denial of motion to reopen is reviewed “under a highly deferential abuse of
discretion standard”). Lin’s petition is therefore denied in part.
DISMISSED in part; DENIED in part.
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