Mersid Mehmedi-Ajvazoska v. Eric Holder, Jr., No. 11-60408 (5th Cir. 2012)
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Case: 11-60408 Document: 00511871222 Page: 1 Date Filed: 05/30/2012 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 11-60408 Summary Calendar May 30, 2012 Lyle W. Cayce Clerk MERSID MEHMEDI-AJVAZOSKA, Petitioner v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A077 800 462 Before DENNIS, CLEMENT, and OWEN, Circuit Judges. PER CURIAM:* Mersid Mehmedi-Ajvazoska, a native and citizen of Macedonia, petitions this court for review of an order from the Board of Immigration Appeals (BIA) dismissing his appeal from the immigration judge s denial of his motion to reopen his removal proceedings and rescind the in absentia removal order issued against him. The Respondent has filed a motion to dismiss this petition on the ground that this court lacks jurisdiction to review the BIA s decision. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 11-60408 Document: 00511871222 Page: 2 Date Filed: 05/30/2012 No. 11-60408 There is no dispute that Mehmedi-Ajvazoska s motion to reopen, which was his second motion to reopen, was not filed within 180 days after the date of the order of removal. 8 U.S.C. § 1229a(b)(5)(C)(i); 8 C.F.R. § 1003.23(b)(4)(ii). In that motion to reopen, Mehmedi-Ajvazoska sought equitable tolling based upon ineffective assistance of counsel. [A] request for equitable tolling of a time- or number-barred motion to reopen on the basis of ineffective assistance of counsel is in essence an argument that the BIA should have exercised its discretion to reopen the proceeding sua sponte based upon the doctrine of equitable tolling. Ramos-Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008). We lack jurisdiction to review the BIA s decision whether to exercise its discretion to reopen a proceeding sua sponte. Id. Accordingly, the motion to dismiss is GRANTED and the petition for review is DISMISSED. 2
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