Hung Hoang v. Robert Wilkinson ( 2021 )

FILED
NOT FOR PUBLICATION
FEB 8 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUNG NGOC HOANG, AKA Nghia Van No. 19-72953
Le; KIM HUE THI AU, AKA Minh Thien
Thi Nguyen, Agency Nos. A098-251-990
A098-251-991
Petitioners,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 3, 2021**
San Francisco, California
Before: SILER,*** RAWLINSON, and BUMATAY, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Petitioners Hung Ngoc Hoang and Kim Hue Thi Au, husband and wife, are
natives and citizens of Vietnam. They petition for review of the Board of
Immigration Appeals’ (BIA) denial of their motion to reopen their immigration
proceedings. We have jurisdiction under 8 U.S.C. § 1252(a)(1). We review the
BIA’s denial of the motion to reopen for an abuse of discretion, and we deny the
petition. See Aguilar Fermin v. Barr, 958 F.3d 887, 892 (9th Cir. 2020),
The immigration court was not deprived of jurisdiction over petitioner’s
immigration proceedings. See Aguilar Fermin, 958 F.3d at 894-95 (holding that
“the lack of time, date, and place” in a notice to appear “did not deprive the
immigration court of jurisdiction” when that information was subsequently
provided and permitted an appearance).
The BIA did not abuse its discretion when denying Petitioners’ motion as
untimely. Petitioners were not entitled to equitable tolling because they failed to
act with diligence, not seeking legal advice during a five and one-half year interval.
See Bonilla v. Lynch, 840 F.3d 575, 583 (9th Cir. 2016), as amended (upholding a
2
finding of lack of diligence due to “a six year gap . . . in [the petitioner’s] pursuit of
legal advice”).1
PETITION DENIED.
1
Because the BIA’s denial of the motion to reopen precluded consideration
of the merits of Petitioners’ claims, they are not properly before us on appeal. See
Toufighi v. Mukasey, 538 F.3d 988, 995 (9th Cir. 2008) (explaining that “our
jurisdiction is limited to review of the [BIA’s order] denying the motion to
reopen”).
3