Habib Khan v. Eric Holder, Jr. , 542 F. App'x 627 ( 2013 )

FILED
NOT FOR PUBLICATION OCT 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HABIB KHAN, No. 09-70750
Petitioner, Agency No. A075-259-362
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 16, 2013**
San Francisco, California
Before: THOMAS and McKEOWN, Circuit Judges, and BENNETT, District
Judge.***
Khan, a native and citizen of Pakistan, petitions for review of three
immigration status decisions: a Board of Immigration Appeals (“BIA”) decision in
*
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 Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
which the BIA denied Khan’s motion to reopen proceedings for being untimely, a
United States Citizenship and Immigration Services Administrative Appeals Office
(“AAO”) decision dismissing Khan’s application for temporary resident status
under Section 245a of the Immigration and Nationality Act (“INA”),
8 U.S.C. § 1255a, and an AAO decision rejecting his application for adjustment of
status under Section 1104 of the Legal Immigration Family Equity Act, Pub. L.
No. 106-553, 114 Stat. 2762, 2762A-142 (2000), amended by LIFE Act
Amendments of 2000, Pub. L. No. 106-554, 114 Stat. 2763, 2763A-324.
We review the BIA’s denial of Khan’s motion to reopen for abuse of
discretion. See Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008). We find the
BIA did not abuse its discretion in denying Khan’s motion to reopen because the
motion was untimely, having been filed more than six years after the BIA’s
decision. See 8 C.F.R. § 1003.2(c)(2). Khan contends that he did not seek a
reopening but rather termination of his removal order, arguing that he was no
longer removable because he had already been inspected and paroled into the
country. Khan’s inspection and parole, however, do not constitute admittance into
the United States for immigration purposes. See INA § 212(d)(5)(A), 8 U.S.C. §
1182(d)(5)(A); Yuen Sang Low v. Att’y Gen. of the U.S., 479 F.2d 820, 822–23
(9th Cir.1973) (holding a paroled petitioner is not entitled to suspension of
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deportation and adjustment of status because the petitioner is not lawfully admitted
into the United States). Khan further suggests the BIA should have exercised its
sua sponte authority to reopen his motion. We lack jurisdiction to review the
BIA’s decision not to invoke its sua sponte authority to reopen proceedings. See
8 C.F.R. § 1003.2(a); Minasyan v. Mukasey, 553 F.3d 1224, 1229 (9th Cir. 2009).
We review the AAO’s decisions under 8 U.S.C. § 1255a(f)(4), which
provides that “the findings of fact and determinations contained in [the
administrative] record shall be conclusive unless the applicant can establish abuse
of discretion or that the findings are directly contrary to clear and convincing facts
contained in the record considered as a whole.” Nothing in the record suggests the
AAO acted “arbitrarily, irrationally, or contrary to law,” Singh v. INS, 213 F.3d
1050, 1052 (9th Cir. 2000) (internal quotation marks omitted), or contrary to the
record, 8 U.S.C. § 1255a(f)(4), in denying his eligibility for temporary resident
status or adjustment of status. As an applicant for temporary resident status, Khan
must prove, by a preponderance of the evidence, his unlawful, continuous
residence in the United States before January 1, 1982, and that he is admissible into
the United States. 8 U.S.C. § 1255a. The LIFE Act contains similar requirements
for applications for adjustment. 8 C.F.R. § 245a.11. The AAO found Khan’s
evidence of continuous residence failed to meet his “more likely than not” burden.
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The AAO also determined Khan was inadmissible under 8 U.S.C. § 1182(a)(9),
and that he failed to seek a waiver of that ground of inadmissibility. Our review of
the record reveals that the AAO did not abuse its discretion and that Khan did not
establish that its findings were contrary to clear and convincing facts in the record
taken as a whole.
PETITION DENIED.
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