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 2013-04

Mohammed Ismail-Yusuf v. Eric Holder, Jr. , 515 F. App'x 671 ( 2013 )


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  •                                                                            FILED
NOT FOR PUBLICATION                             APR 11 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MOHAMMED BILAL ISMAIL-YUSUF,                     No. 09-70688
Petitioner,                        Agency No. A029-541-099
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 8, 2013 **
Pasadena, California
Before: REINHARDT and MURGUIA, Circuit Judges, and MOLLOY, Senior
District Judge.***
Mohammed Bilal Ismail-Yusuf, a native and citizen of India, petitions for
review of a Board of Immigration Appeals (“BIA”) order denying his motion to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Donald W. Molloy, Senior United States District
Judge for the District of Montana, sitting by designation.
reopen. We possess jurisdiction under
    8 U.S.C. § 1282
     and review for an abuse of
discretion. Ghahremani v. Gonzales,
    498 F.3d 993
    , 997 (9th Cir. 2007). We deny
in part and dismiss in part the petition for review.
The BIA acted within its discretion by denying Ismail-Yusuf’s motion as
untimely because it was filed more than five years after the agency’s administrative
order of removal became final. See 8 U.S.C. § 1229a(c)(7)(C)(i);
    8 C.F.R. § 1003.2
    (c)(2). Ismail-Yusuf failed to establish that an exception to the filing
deadline applied, see 8 U.S.C. § 1229a(c)(7)(C)(ii), (iv);
    8 C.F.R. § 1003.2
    (c)(3),
and did not demonstrate the reasonable diligence necessary for equitable tolling of
the deadline, see Avagyan v. Holder,
    646 F.3d 672
    , 679 (9th Cir. 2011). The BIA’s
denial of Ismail-Yusuf’s motion to reopen was therefore not arbitrary, irrational, or
contrary to law. Singh v. INS,
    295 F.3d 1037
    , 1039 (9th Cir. 2002).
We lack jurisdiction over Ismail-Yusuf’s challenges to the underlying merits
of his 2003 removal proceeding. See Singh v. INS,
    315 F.3d 1186
    , 1188 (9th Cir.
2003). We also lack jurisdiction to review the BIA’s decision not to invoke its sua
sponte authority to reopen proceedings under
    8 C.F.R. § 1003.2
    (a). See Ekimian v.
INS,
    303 F.3d 1153
    , 1159 (9th Cir. 2002).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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