Opinion
No. 08-73544 Agency No. A096-397-085
01-16-2013
ARI KAHN, Petitioner, v. ERIC H. HOLDER, Jr., Attorney General, Respondent.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 14, 2013
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
San Francisco, California
Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.
Ari Kahn petitions for review of the Board of Immigration Appeals' decision denying his application for adjustment of status. We have jurisdiction under 8 U.S.C. § 1252 and deny the petition for review.
Kahn challenges the BIA's conclusion that he failed to maintain "a lawful status" for over 180 days. See 8 U.S.C. § 1255(k). Even if we were to accept Kahn's arguments that he maintained a lawful status while his application for extension of status was pending and while his application for adjustment of status was pending, he still failed to maintain lawful status for a period exceeding 180 days.
Kahn also argues that the 180-day time limit under § 1255(k) is subject to equitable tolling and should be tolled in his case. Even assuming that Kahn did not waive his equitable tolling argument—and even if we were to accept Kahn's arguments that the period of failing to maintain lawful status was tolled by Kahn's filing an application for extension of status, by DHS's failure to provide Kahn with notice of its decision denying extension, and by Kahn's applying for adjustment of status—Kahn still failed to maintain a lawful status for a period exceeding 180 days. Remand to the BIA to consider the issue of equitable tolling would thus be futile.
At best, any failure by DHS to provide Kahn with notice of its decision could only toll the period until Kahn was served with a Notice to Appear since this would have put him on notice that his application for extension of status had been denied.
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Finally, the BIA did not err in streamlining the appeal since, even if Kahn raised the issue, the BIA would not have needed to decide whether equitable tolling applied, and thus the issues the BIA actually needed to reach were not novel. See 8 C.F.R. § 1003.1(e)(4)(i).
PETITION DENIED.