Karine Hovsepyan v. Jefferson Sessions, III ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARINE HOVSEPYAN, No. 16-72496
Petitioner, Agency No. A098-129-565
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Karine Hovsepyan, a native of the Soviet Union and a citizen of Armenia,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying
her second motion to reopen removal proceedings. Our jurisdiction is governed by
8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, Hovsepyan’s
request for oral argument is denied.
reopen, and review de novo questions of law. Mohammed v. Gonzales, 400 F.3d
785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition for
review.
The BIA did not abuse its discretion in denying Hovsepyan’s second motion
to reopen as untimely and number-barred, where she filed the motion more than
ten years after the filing deadline, and did not present sufficient evidence of due
diligence for equitable tolling of the deadline. See 8 C.F.R. § 1003.2(c)(2);
Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (equitable tolling is
available to a petitioner who is prevented from timely filing a motion to reopen due
to deception, fraud, or error, as long as the petitioner exercises due diligence in
discovering such circumstances). We reject Hovsepyan’s contention that the BIA
ignored relevant evidence. See Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.
2006) (petitioner did not overcome the presumption that the BIA did review the
record).
Absent a claim of legal or constitutional error, we lack jurisdiction to review
the agency’s decision not to reopen proceedings sua sponte. See Bonilla v. Lynch,
840 F.3d 575, 588 (9th Cir. 2016) (the court’s jurisdiction to review BIA decisions
denying sua sponte reopening is limited to reviewing the reasoning behind the
decisions for legal or constitutional error). Hovsepyan has identified no basis for
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revisiting this precedent at this time. See Miller v. Gammie, 335 F.3d 889, 892-93
(9th Cir. 2003) (holding that a three judge panel “may reexamine normally
controlling circuit precedent” only “where the reasoning or theory of our prior
circuit authority is clearly irreconcilable with the reasoning or theory of
intervening higher authority”).
We deny Hovsepyan’s request for attorney’s fees under the Equal Access to
Justice Act.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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