Dewand Chand v. Loretta E. Lynch

608 F. App'x 475

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 23, 2015
• Docket: 11-70835, 11-73242
• Status: Unpublished

Opinion

MEMORANDUM **

Dewand Puri, 1 a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen and denial of his motion to reconsider. We review the BIA’s denial of these motions for abuse of discretion, see Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and we deny in part and dismiss in part.

1. Puri argues that the BIA erred in deciding not to toll the filing deadline for his motion to reopen. Whether or not the filing deadline should have been equitably tolled is a mixed question of law and fact. Ghahremani v. Gonzales, 498 F.3d 993, 998-99 (9th Cir.2007). As a result, pursuant to 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction to review the BIA’s denial of Puri’s motion to reopen. 2 Id.

The BIA did not abuse its discretion in denying Puri’s motion to reopen because the motion was filed almost five years after the date on which the BIA rendered its decision dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2), and Puri failed to demonstrate that he acted with the due diligence required for equitable tolling. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003).

2. On his motion to reconsider, Puri has not presented any argument in his briefs in support of this petition for review. Because the failure to file an opening brief (addressing the merits of the petition) is tantamount to failure to prosecute an appeal, this petition for review will be dismissed. See Ninth Cir. R. 42-1.

In No. 11-70835, the petition for review is DENIED.

In No. 11-73242, the petition for review is DISMISSED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . Sometime between 1995 and 1997, the petitioner started to go by the name Dewand Puri. However, he was convicted for his crimes under the name Dewand Chand.

2 . The recent Supreme Court case, Reyes Mata v. Lynch, - U.S. -, 135 S.Ct. 2150, — L.Ed.2d - (2015), does not affect this case because we conclude that we have jurisdiction over this petition for review of the BIA's denial of the motion to reopen.