MOHAMMED ISMAIL-YUSUF V. ERIC HOLDER, JR., No. 09-70688 (9th Cir. 2013)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS APR 11 2013 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT MOHAMMED BILAL ISMAIL-YUSUF, Petitioner, No. 09-70688 Agency No. A029-541-099 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 8, 2013 ** Pasadena, California Before: REINHARDT and MURGUIA, Circuit Judges, and MOLLOY, Senior District Judge.*** Mohammed Bilal Ismail-Yusuf, a native and citizen of India, petitions for review of a Board of Immigration Appeals ( BIA ) order denying his motion to * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Donald W. Molloy, Senior United States District Judge for the District of Montana, sitting by designation. reopen. We possess jurisdiction under 8 U.S.C. § 1282 and review for an abuse of discretion. Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007). We deny in part and dismiss in part the petition for review. The BIA acted within its discretion by denying Ismail-Yusuf s motion as untimely because it was filed more than five years after the agency s administrative order of removal became final. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Ismail-Yusuf failed to establish that an exception to the filing deadline applied, see 8 U.S.C. § 1229a(c)(7)(C)(ii), (iv); 8 C.F.R. § 1003.2(c)(3), and did not demonstrate the reasonable diligence necessary for equitable tolling of the deadline, see Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011). The BIA s denial of Ismail-Yusuf s motion to reopen was therefore not arbitrary, irrational, or contrary to law. Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002). We lack jurisdiction over Ismail-Yusuf s challenges to the underlying merits of his 2003 removal proceeding. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir. 2003). We also 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 Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 2

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