Eang Im v. Eric Holder, Jr. , 479 F. App'x 139 ( 2012 )

FILED
NOT FOR PUBLICATION SEP 18 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EANG IM, No. 09-73527
Petitioner, Agency No. A079-539-378
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Eang Im, a native and citizen of Cambodia, petitions for review of a 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. Mohammed v. Gonzales, 400
*
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).
F.3d 785, 791 (9th Cir. 2005). We deny in part and dismiss in part the petition for
review.
The BIA did not abuse its discretion in denying Im’s motion to reopen
because the motion was filed nearly nine months after the BIA’s January 5, 2009,
decision vacating the immigration judge’s decision to defer Im’s removal and
ordering him removed, see 8 C.F.R. § 1003.2(c)(2) (motion to reopen generally
must be filed within 90 days of the final administrative order), and Im failed to
allege grounds for equitable tolling, see Avagyan v. Holder, 646 F.3d 672, 678-80
(equitable tolling available where petitioner is prevented from filing because of
deception, fraud, or error, as long as petitioner acts with due diligence in
discovering such circumstances).
We 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 Mejia-
Hernandez v. Holder, 633 F.3d 818, 824 (9th Cir. 2011).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 09-73527