Paramjit Singh v. Loretta E. Lynch , 639 F. App'x 509 ( 2016 )

FILED
NOT FOR PUBLICATION
MAY 10 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PARAMJIT SINGH, No. 13-72124
Petitioner, Agency No. A098-537-234
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 5, 2016**
Seattle, Washington
Before: GRABER, BERZON, and MURGUIA, Circuit Judges.
Petitioner Paramjit Singh seeks review of the Board of Immigration
Appeals’ ("BIA") denial of his motion to reopen. Reviewing for abuse of
discretion, Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014), we dismiss in part and
deny in part the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
1. We lack jurisdiction over the BIA’s discretionary decision not to invoke
its sua sponte authority to reopen proceedings. Id. at 609–10. Accordingly, we
dismiss that part of Petitioner’s petition.
2. Petitioner filed the motion to reopen well after the statutory deadline of
90 days following the entry of the final order of removal. The BIA correctly held
that none of the statutory or regulatory exceptions to the time limit applies here. 8
U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3). The order of removal was not
entered in absentia, 8 U.S.C. § 1229a(c)(7)(C)(iii); the motion asserted the
existence of neither changed country conditions nor a battered spouse, child, or
parent, id. § 1229a(c)(7)(C)(ii) & (iv); and the government did not join the motion,
8 C.F.R. § 1003.2(c)(3)(iii) & (iv).
3. The BIA did not abuse its discretion in declining to apply equitable
tolling. Substantial evidence supports the BIA’s conclusion that the medical
evidence demonstrated, at most, mental incompetence in the preceding few
years—well after the entry of the final order of removal. Accordingly, even
assuming that mental incompetence could qualify as "error" for purposes of
equitable tolling, Petitioner has not shown that he was "prevented from filing
because of a deception, fraud, or error." Avagyan v. Holder, 646 F.3d 672, 679
(9th Cir. 2011).
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4. Because the motion to reopen was untimely, the BIA properly declined to
reach the merits of Petitioner’s new application for humanitarian asylum. See
Najmabadi v. Holder, 597 F.3d 983, 992 n.2 (9th Cir. 2010) (holding that, because
the motion to reopen was untimely, the BIA "was entitled to deny the motion
solely on [that] ground[]").
Petition DISMISSED in part and DENIED in part.
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