Mersid Mehmedi-Ajvazoska v. Eric Holder, Jr. , 471 F. App'x 290 ( 2012 )

Case: 11-60408 Document: 00511871222 Page: 1 Date Filed: 05/30/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 30, 2012
No. 11-60408
Summary Calendar 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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