Fengting Li v. Loretta E. Lynch , 615 F. App'x 891 ( 2015 )

FILED
NOT FOR PUBLICATION SEP 03 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FENGTING LI, No. 12-73850
Petitioner, Agency No. A097-873-053
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 25, 2015**
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.
Fengting Li, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order denying his 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 reopen, and review de novo
*
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).
constitutional claims. 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 as untimely Li’s motion to
reopen, where he filed the motion over five years after his order of removal
became final, see 8 C.F.R. § 1003.2(c)(2), and failed to establish that any statutory
or regulatory exception applies, see 8 C.F.R. § 1003.2(c)(3) (setting forth
exceptions to the filing deadline for motions to reopen).
The BIA did not abuse its discretion in denying Li’s motion to reopen based
on ineffective assistance of counsel, where Li failed to demonstrate prior counsel’s
allegedly ineffective assistance prejudiced him. See Iturribarria v. INS, 321 F.3d
889, 897-98 (9th Cir. 2003).
Accordingly, Li’s claim that his right to due process was violated when he
was not provided an opportunity to submit new evidence regarding his son’s
religious activities fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to
prevail on a due process challenge, an alien must show error and prejudice).
We lack jurisdiction to review the BIA’s decision not to exercise its sua
sponte authority to reopen proceedings. See Mejia-Hernandez v. Holder, 633 F.3d
818, 823-24 (9th Cir. 2011).
2 12-73850
In light of our disposition, we need not reach Li’s remaining contentions
concerning the materiality of evidence regarding his son’s religious activities. See
Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir. 2006) (declining to reach
nondispositive challenges to an agency order).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 12-73850