Mikhail Moiseev v. Loretta E. Lynch

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JAN 13 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MIKHAIL BORISOVICH MOISEEV, No. 12-70612
Petitioner, Agency No. A072-401-012
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 12, 2015
San Francisco, California
Before: REINHARDT, NOONAN, and CALLAHAN, Circuit Judges.
Petitioner Mikhail Moiseev, a Russian citizen, appeals the Board of
Immigration Appeals’ (BIA) denial of her motion to reopen asylum proceedings.
We review for abuse of discretion, see Socop-Gonzalez v. I.N.S., 272 F.3d 1176,
1187 (9th Cir. 2001) (en banc), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Previously, Moiseev petitioned for asylum based on her Jewish identity; the
BIA denied the petition in 2004. In 2011, Moiseev moved for the reopening of her
case, arguing that she should be granted asylum based on her status as a
transgendered woman. The BIA denied the motion, concluding both that the
motion was untimely and that it did not present information that “was ‘not
available and could not have been discovered or presented at the former hearing.’”
On appeal, Moiseev recognizes that she filed her motion to reopen more than 90
days after the BIA’s 2004 decision, but argues that the deadline should be
equitably tolled in her case because alleged mental health issues prevented her
from presenting an asylum claim before that time based on her transgender status.
We have held that the 90-day deadline to file a motion to reopen is subject to
equitable tolling and that “mental incapacity” may serve as a basis for equitable
tolling. Socop-Gonzalez, 272 F.3d at 1193 (citing Stoll v. Runyon, 165 F.3d 1238(9th Cir. 1999)). Even if we were to equitably toll the deadline for Moiseev’s
motion to reopen, however, the BIA still did not abuse its discretion by concluding
that Moiseev’s motion did not present information that was “not available and
could not have been discovered or presented at the former hearing.” 8 C.F.R. §
1003.2(c)(1). Moiseev’s own declaration states that she has known that she is
transgendered, and was mistreated in Russia for that reason, since her youth, long
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before 2004. In addition, the psychological report filed in support of her motion to
reopen states that at various times prior to 2004 she lived openly as a woman in the
United States. Because this information could have been presented in Moiseev’s
prior proceedings, we are compelled to conclude that the BIA did not abuse its
discretion in denying her motion to reopen.
PETITION FOR REVIEW DENIED.
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