Opinion
No. 13-73685
06-30-2015
KHALIL MOUSA HASSAN, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A079-148-437 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Khalil Mousa Hassan, a native and citizen of Lebanon, petitions for review of the 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, and review de novo constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion by denying as untimely Hassan's motion to reopen based on the alleged ineffective assistance of his prior counsel where he filed the motion approximately eight years after his final order of removal. See 8 C.F.R. § 1003.2(c)(2). He did not submit evidence sufficient to demonstrate the due diligence necessary to warrant equitable tolling of the filing deadline. See Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (diligence requires petitioner to take "reasonable steps to investigate [any] suspected fraud" or make "reasonable efforts to pursue relief"); Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir. 2003) (beginning 90-day limitations period when petitioner became aware of fraud). Hassan's due process claim therefore fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process challenge, an alien must show error and prejudice).
To the extent Hassan contends the BIA erred in declining to reopen proceedings sua sponte, we lack jurisdiction to consider this contention. See Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24 (9th Cir. 2011).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.