                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        APR 20 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

MARKOS ABELYAN,                                 No.    15-73263

                Petitioner,                     Agency No. A097-113-104

 v.
                                                MEMORANDUM *
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                              Submitted April 11, 2017**

Before:      GOULD, CLIFTON, and HURWITZ, Circuit Judges.

      Markos Abelyan, a native and citizen of Armenia, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen

removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review

for abuse of discretion the denial of a motion to reopen. Avagyan v. Holder, 646



      *
             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).
F.3d 672, 674 (9th Cir. 2011). We deny in part and dismiss in part the petition for

review.

      The BIA did not abuse its discretion in denying the motion to reopen as

untimely, where it was filed more than ten years after the final administrative order

of removal, see 8 C.F.R. § 1003.2(c)(2), and Abelyan failed to establish the due

diligence required for equitable tolling of the filing deadline, see Avagyan, 646

F.3d at 679 (equitable tolling is available to an alien who is prevented from timely

filing a motion to reopen due to deception, fraud, or error, as long as petitioner

exercises due diligence in discovering such circumstances).

      Contrary to Abelyan’s contention, the BIA applied the proper diligence

standard and did not ignore evidence or contentions. See Najmabadi v. Holder,

597 F.3d 983, 990 (9th Cir. 2010) (the agency must consider the issues raised and

express its decision “in terms sufficient to enable a reviewing court to perceive that

it has heard and thought and not merely reacted” (citation and internal quotation

marks omitted)); Cole v. Holder, 659 F.3d 762, 771-72 (9th Cir. 2011) (the BIA

need not discuss each piece of evidence, and the agency’s general statement that it

considered all of the evidence may be sufficient).

      Because the timeliness determination is dispositive, we do not address

Abelyan’s contentions regarding prejudice.




                                          2                                    15-73263
       We lack jurisdiction to consider Abelyan’s contention that the agency

abused its discretion in declining to reopen his case sua sponte. See Ekimian v.

I.N.S., 303 F.3d 1153, 1159-60 (9th Cir. 2002); Mejia-Hernandez v. Holder, 633

F.3d 818, 823-824 (9th Cir. 2011); cf. Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir.

2016). Abelyan urges us to reconsider our holding in Ekimian, but a three-judge

panel cannot overrule circuit precedent in the absence of an intervening decision

from a higher court or en banc decision of this court. See Avagyan, 646 F.3d at

677.

       We deny the request for EAJA fees as moot.

       PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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