Esfahani v. Holder , 333 F. App'x 225 ( 2009 )

MEMORANDUM ^**

Nepton Esfahani, a native and citizen of Iran, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his third motion to reopen deportation proceedings to apply for protection under the Convention Against Torture. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo constitutional issues, Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001), and we dismiss in part and deny in part the petition for review.

To the extent Esfahani challenges the immigration judge’s denial of his third motion to reopen as time and numerically barred, we lack jurisdiction to review it because he did not exhaust it before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.2004). We also lack jurisdiction to review the agency’s refusal to reopen proceedings sua sponte. See Minasyan v. Mulcasey, 553 F.3d 1224, 1229 (9th Cir.2009).

We reject Esfahani’s contention that the regulatory deadline violates his equal protection rights, see Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1163-65 (9th Cir.2002) (rejecting an equal protection challenge to a statutory time limitation where such limitation served a rational purpose), and we reject his due process contention that the regulatory deadline is irrational, see INS v. Abudu, 485 U.S. 94, 107-08, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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