Mohammed Ismail-Yusuf v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION APR 11 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MOHAMMED BILAL ISMAIL-YUSUF, No. 09-70688
Petitioner, Agency No. A029-541-099
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 8, 2013 **
Pasadena, California
Before: REINHARDT and MURGUIA, Circuit Judges, and MOLLOY, Senior
District Judge.***
Mohammed Bilal Ismail-Yusuf, a native and citizen of India, petitions for
review of a Board of Immigration Appeals (“BIA”) order denying his motion to
*
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 Donald W. Molloy, Senior United States District
Judge for the District of Montana, sitting by designation.
reopen. We possess jurisdiction under 8 U.S.C. § 1282 and review for an abuse of
discretion. Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007). We deny
in part and dismiss in part the petition for review.
The BIA acted within its discretion by denying Ismail-Yusuf’s motion as
untimely because it was filed more than five years after the agency’s administrative
order of removal became final. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). Ismail-Yusuf failed to establish that an exception to the filing
deadline applied, see 8 U.S.C. § 1229a(c)(7)(C)(ii), (iv); 8 C.F.R. § 1003.2(c)(3),
and did not demonstrate the reasonable diligence necessary for equitable tolling of
the deadline, see Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011). The BIA’s
denial of Ismail-Yusuf’s motion to reopen was therefore not arbitrary, irrational, or
contrary to law. Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002).
We lack jurisdiction over Ismail-Yusuf’s challenges to the underlying merits
of his 2003 removal proceeding. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.
2003). We also 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 Ekimian v.
INS, 303 F.3d 1153, 1159 (9th Cir. 2002).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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