Samath Doung v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMATH DOUNG, No. 18-72536
Petitioner, Agency No. A025-299-112
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
Samath Doung, a native and citizen of Cambodia, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his motion to reopen removal proceedings.
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of
*
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).
discretion the denial of a motion to reopen. Bonilla v. Lynch, 840 F.3d 575, 581
(9th Cir. 2016). We review de novo questions of law, id., and due process claims
in immigration proceedings, Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014).
We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Doung’s motion to reopen as
untimely, where he filed the motion over 12 years after his final order of
deportation and Doung failed to show due diligence for equitable tolling of the
filing deadline after an intervening change in law. See 8 C.F.R. § 1003.2(c)(2)-(3);
see also Lona v. Barr, 958 F.3d 1225, 1230-32 (9th Cir. 2020) (changes in law can
serve as a basis for tolling but a petitioner must show due diligence).
The BIA did not err in its conclusion that Doung’s conviction is
categorically an aggravated felony theft offense. See United States v. Martinez-
Hernandez, 932 F.3d 1198, 1206-07 (9th Cir. 2019) (California Penal Code § 211
is categorically an aggravated felony theft offense). Doung’s contention that the
BIA erred in denying sua sponte reopening for failure to demonstrate exceptional
circumstances does not otherwise raise a legal or constitutional error to invoke our
jurisdiction. See Bonilla, 840 F.3d at 588 (“[T]his court has jurisdiction to review
Board decisions denying sua sponte reopening for the limited purpose of reviewing
the reasoning behind the decisions for legal or constitutional error.”); see also
2 18-72536
Lona, 958 F.3d at 1234-35 (BIA is not required to reopen proceedings sua sponte
even in a situation involving a fundamental change in law).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 18-72536