Khan v. Holder , 311 F. App'x 718 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 20, 2009
No. 08-60086
Summary Calendar Charles R. Fulbruge III
Clerk
MUHAMMAD SARFRAZ KHAN
Petitioner
v.
ERIC H HOLDER, JR, U S ATTORNEY GENERAL
Respondent
Petition for Review of Orders of the
Board of Immigration Appeals
BIA No. A79 008 104
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Petitioner Muhammad Sarfraz Khan, a native and citizen of Pakistan,
petitions for review of the order of the Board of Immigration Appeals (BIA)
denying his motion to reopen his removal proceeding. Khan also petitions for
review of the BIA’s order denying his motion to reconsider its denial of his
motion to reopen.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-60086
An immigration judge (IJ) ordered Khan removed after he conceded
removability. The BIA affirmed that order in August 2005 and denied Khan’s
motion for reconsideration in October 2005. We dismissed Khan’s petition for
review as untimely, denied his petition for review of the BIA’s decision not to
reconsider its order, and denied his motion to stay removal. See Khan v.
Gonzales, 243 F. App’x 24 (5th Cir. 2007).
In August 2007, more than two years after the BIA denied him relief,
Kahn filed a motion with the BIA to reopen his removal proceeding. He
conceded untimeliness but asserted that he had become eligible for derivative
adjustment of status after the BIA had rendered its decision. He later
supplemented his motion to reopen by alleging that his prior counsel had been
ineffective and that he was entitled to remedy that ineffectiveness by having his
removal proceeding reopened. The BIA denied the motion to reopen as untimely
for having been filed more than 90 days after its prior order denying Khan relief.
It also rejected Khan’s claim of ineffective assistance of counsel as being
unsupported by the evidence. Additionally, it declined to reopen his case sua
sponte. Khan moved for reconsideration, but that motion was denied.
Khan contends that his removal proceeding should have been reopened
despite the untimeliness of his motion. He asserts that reopening is warranted
because a change in his wife’s immigration status presented a new opportunity
for him to adjust his status and avert removal and because his prior counsel’s
ineffectiveness left Khan ignorant of his rights and rendered his motion to
reopen untimely.
Khan’s attempt to demonstrate that exceptional circumstances existed
within the meaning of 8 C.F.R. § 1003.23(b)(4)(ii) fails because he did not satisfy
that subsection’s conjunctive requirement that the motion to reopen be filed
within 180 days after the removal order. § 1003.23(b)(4)(ii); see also 8 C.F.R.
§ 1003.2 (providing that the section’s 90-day period for filing a motion to reopen
removal proceedings in the BIA does not apply to motions brought pursuant to
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No. 08-60086
§ 1003.23(b)(4)(ii)). A district court need not address the issue of exceptional
circumstances if the motion to do so is not filed within the time allowed by law.
Because of Khan’s dilatoriness, reopening depended entirely on a sua
sponte motion by either the BIA or the IJ. See Ramos-Bonilla v. Mukasey, 543
F.3d 216, 220 (5th Cir. 2008) (stating that “a request for equitable tolling of a
time- or number-barred motion to reopen on the basis of ineffective assistance
of counsel is” essentially a contention that the BIA, or the IJ, should have sua
sponte reopened the proceeding based upon the doctrine of equitable tolling). As
the provision for sua sponte reopening vests the BIA with complete discretion to
deny untimely motions to reopen, this court “has no legal standard by which to
judge the . . . ruling, and therefore . . . lacks jurisdiction.” Id. at 220; § 1003.2(a).
Khan’s petition for review of the order of removal is DISMISSED, and his
petition to review the order denying reconsideration of his motion to reopen is
DENIED. See Brinkmann v. Dallas Cty. Deputy Sherriff Abner, 813 F.2d 744,
748 (5th Cir. 1987) (stating that the failure to brief issues adequately is
equivalent to not having appealed).
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