                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            JAN 13 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
MIKHAIL BORISOVICH MOISEEV,                      No. 12-70612

              Petitioner,                        Agency No. A072-401-012

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                      Argued and Submitted August 12, 2015
                            San Francisco, California

Before: REINHARDT, NOONAN, and CALLAHAN, Circuit Judges.

      Petitioner Mikhail Moiseev, a Russian citizen, appeals the Board of

Immigration Appeals’ (BIA) denial of her motion to reopen asylum proceedings.

We review for abuse of discretion, see Socop-Gonzalez v. I.N.S., 272 F.3d 1176,

1187 (9th Cir. 2001) (en banc), and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Previously, Moiseev petitioned for asylum based on her Jewish identity; the

BIA denied the petition in 2004. In 2011, Moiseev moved for the reopening of her

case, arguing that she should be granted asylum based on her status as a

transgendered woman. The BIA denied the motion, concluding both that the

motion was untimely and that it did not present information that “was ‘not

available and could not have been discovered or presented at the former hearing.’”

On appeal, Moiseev recognizes that she filed her motion to reopen more than 90

days after the BIA’s 2004 decision, but argues that the deadline should be

equitably tolled in her case because alleged mental health issues prevented her

from presenting an asylum claim before that time based on her transgender status.

      We have held that the 90-day deadline to file a motion to reopen is subject to

equitable tolling and that “mental incapacity” may serve as a basis for equitable

tolling. Socop-Gonzalez, 272 F.3d at 1193 (citing Stoll v. Runyon, 165 F.3d 1238

(9th Cir. 1999)). Even if we were to equitably toll the deadline for Moiseev’s

motion to reopen, however, the BIA still did not abuse its discretion by concluding

that Moiseev’s motion did not present information that was “not available and

could not have been discovered or presented at the former hearing.” 8 C.F.R. §

1003.2(c)(1). Moiseev’s own declaration states that she has known that she is

transgendered, and was mistreated in Russia for that reason, since her youth, long


                                          2
before 2004. In addition, the psychological report filed in support of her motion to

reopen states that at various times prior to 2004 she lived openly as a woman in the

United States. Because this information could have been presented in Moiseev’s

prior proceedings, we are compelled to conclude that the BIA did not abuse its

discretion in denying her motion to reopen.

PETITION FOR REVIEW DENIED.




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