Tanwar v. Gonzales

242 F. App'x 391

Opinion

MEMORANDUM

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Arwindar Tanwar, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order adopting and affirming the Immigration Judge’s (“IJ”) order denying his second motion to reopen and rescind his in absentia removal order. We have jurisdiction under 8 U.S.C. § 1252. We review for an abuse of discretion, see Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004), amended by 404 F.3d 1105 (9th Cir.2005), and we deny the petition for review.

The IJ did not abuse her discretion in denying Tanwar’s second motion to reopen, filed more than 180 days after the final order of removal. See 8 C.F.R. § 1003.23(b)(4)(ii); Lo v. Ashcroft, 341 F.3d 934, 936 (9th Cir.2003) (noting that an in absentia order of removal may be rescinded if an alien, within 180 days, files a motion that demonstrates that his or her failure to appear was due to exceptional circumstances); 8 C.F.R. § 1003.2(c)Denied(2).

The IJ acted within her discretion in refusing to toll these limitations where Tanwar’s attorney received notice that the first motion to reopen was denied and Tanwar has not alleged ineffective assistance of counsel. See Iturribarria v. INS, 321 F.3d 889, 898 (9th Cir.2003) (stating that the court recognizes equitable tolling of deadlines on motions to reopen when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error) (citations omitted).

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 Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).

PETITION FOR REVIEW DENIED.

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