                                                                           FILED
                            NOT FOR PUBLICATION                                OCT 18 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


HABIB KHAN,                                      No. 09-70750

              Petitioner,                        Agency No. A075-259-362

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                            Submitted October 16, 2013**
                              San Francisco, California

Before: THOMAS and McKEOWN, Circuit Judges, and BENNETT, District
Judge.***

       Khan, a native and citizen of Pakistan, petitions for review of three

immigration status decisions: a Board of Immigration Appeals (“BIA”) decision in

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
which the BIA denied Khan’s motion to reopen proceedings for being untimely, a

United States Citizenship and Immigration Services Administrative Appeals Office

(“AAO”) decision dismissing Khan’s application for temporary resident status

under Section 245a of the Immigration and Nationality Act (“INA”),

8 U.S.C. § 1255a, and an AAO decision rejecting his application for adjustment of

status under Section 1104 of the Legal Immigration Family Equity Act, Pub. L.

No. 106-553, 114 Stat. 2762, 2762A-142 (2000), amended by LIFE Act

Amendments of 2000, Pub. L. No. 106-554, 114 Stat. 2763, 2763A-324.

      We review the BIA’s denial of Khan’s motion to reopen for abuse of

discretion. See Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008). We find the

BIA did not abuse its discretion in denying Khan’s motion to reopen because the

motion was untimely, having been filed more than six years after the BIA’s

decision. See 8 C.F.R. § 1003.2(c)(2). Khan contends that he did not seek a

reopening but rather termination of his removal order, arguing that he was no

longer removable because he had already been inspected and paroled into the

country. Khan’s inspection and parole, however, do not constitute admittance into

the United States for immigration purposes. See INA § 212(d)(5)(A), 8 U.S.C. §

1182(d)(5)(A); Yuen Sang Low v. Att’y Gen. of the U.S., 479 F.2d 820, 822–23

(9th Cir.1973) (holding a paroled petitioner is not entitled to suspension of


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deportation and adjustment of status because the petitioner is not lawfully admitted

into the United States). Khan further suggests the BIA should have exercised its

sua sponte authority to reopen his motion. We lack jurisdiction to review the

BIA’s decision not to invoke its sua sponte authority to reopen proceedings. See

8 C.F.R. § 1003.2(a); Minasyan v. Mukasey, 553 F.3d 1224, 1229 (9th Cir. 2009).

      We review the AAO’s decisions under 8 U.S.C. § 1255a(f)(4), which

provides that “the findings of fact and determinations contained in [the

administrative] record shall be conclusive unless the applicant can establish abuse

of discretion or that the findings are directly contrary to clear and convincing facts

contained in the record considered as a whole.” Nothing in the record suggests the

AAO acted “arbitrarily, irrationally, or contrary to law,” Singh v. INS, 213 F.3d

1050, 1052 (9th Cir. 2000) (internal quotation marks omitted), or contrary to the

record, 8 U.S.C. § 1255a(f)(4), in denying his eligibility for temporary resident

status or adjustment of status. As an applicant for temporary resident status, Khan

must prove, by a preponderance of the evidence, his unlawful, continuous

residence in the United States before January 1, 1982, and that he is admissible into

the United States. 8 U.S.C. § 1255a. The LIFE Act contains similar requirements

for applications for adjustment. 8 C.F.R. § 245a.11. The AAO found Khan’s

evidence of continuous residence failed to meet his “more likely than not” burden.


                                           3
The AAO also determined Khan was inadmissible under 8 U.S.C. § 1182(a)(9),

and that he failed to seek a waiver of that ground of inadmissibility. Our review of

the record reveals that the AAO did not abuse its discretion and that Khan did not

establish that its findings were contrary to clear and convincing facts in the record

taken as a whole.

      PETITION DENIED.




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