Palwinder Ghotra v. Eric H. Holder, Jr. , 331 F. App'x 428 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1961
___________
Palwinder Ghotra, also known as *
Harsaran Kochhar, *
* Petition for Review of an
Petitioner, * Order of the Board of
* Immigration Appeals.
v. *
* [UNPUBLISHED]
Eric H. Holder, Jr., Attorney General *
of the United States, *
*
Respondent. *
___________
Submitted: August 6, 2009
Filed: August 19, 2009
___________
Before WOLLMAN, RILEY, and SMITH, Circuit Judges.
___________
PER CURIAM.
Palwinder Ghotra petitions for review of an order of the Board of Immigration
Appeals (BIA) that denied his motion to reopen. After careful review, we conclude
the BIA acted within its discretion in denying Ghotra’s motion to reopen under 8
C.F.R. § 1003.2(c), because the motion was filed more than ten months after the
BIA’s January 2007 final order. See 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen
must be filed within 90 days of final removal order); Ghasemimehr v. Gonzales, 427
F.3d 1160, 1162-63 (8th Cir. 2005) (per curiam) (BIA did not abuse its discretion in
denying untimely motion to reopen). We also conclude the BIA did not abuse its
discretion in refusing to waive the time limitation based on alleged ineffective
assistance of counsel because Ghotra failed to comply with the Lozada1 requirements.
See Habchy v. Gonzales, 471 F.3d 858, 863-64 (8th Cir. 2006). We lack jurisdiction
to review either the BIA’s refusal to sua sponte reopen under 8 C.F.R. § 1003.2(a), see
Tamenut v. Mukasey, 521 F.3d 1000, 1001, 1004-05 (8th Cir. 2008) (en banc) (per
curiam), or Ghotra’s assertions not first presented to the BIA, see Afolayan v. INS,
219 F.3d 784, 788 (8th Cir. 2000).
Accordingly, we deny the petition.
______________________________
1
Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988) (petitioner must submit
affidavit attesting to relevant facts; must inform counsel of allegations and allow
response; and must state whether complaint has been filed with appropriate
disciplinary authorities, and if not, why not).
-2-