Opinion
No. 09-73527 Agency No. A079-539-378
09-18-2012
EANG IM, 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NOT FOR PUBLICATION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
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Eang Im, a native and citizen of Cambodia, petitions for review of a 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. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Im's motion to reopen because the motion was filed nearly nine months after the BIA's January 5, 2009, decision vacating the immigration judge's decision to defer Im's removal and ordering him removed, see 8 C.F.R. § 1003.2(c)(2) (motion to reopen generally must be filed within 90 days of the final administrative order), and Im failed to allege grounds for equitable tolling, see Avagyan v. Holder, 646 F.3d 672, 678-80 (equitable tolling available where petitioner is prevented from filing because of deception, fraud, or error, as long as petitioner acts with due diligence in discovering such circumstances).
We 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 Mejia-Hernandez v. Holder, 633 F.3d 818, 824 (9th Cir. 2011).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.