                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              DEC 18 2009

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

EUGENE PE BENITO SUPNET,                         No. 05-75680

             Petitioner,                         Agency No. A038-560-177

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

             Respondent.



EUGENE PE BENITO SUPNET,                         No. 07-72077

             Petitioner,                         Agency No. A038-560-177

  v.

ERIC H. HOLDER Jr., Attorney General,

             Respondent.


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




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                           Submitted October 7, 2009**
                              Pasadena, California


Before: HALL, W. FLETCHER and CLIFTON, Circuit Judges.

      Eugene Supnet, native and citizen of the Philippines, petitions for review of

two orders from the Board of Immigration Appeals (BIA). Supnet has been a legal

resident alien since 1984 but now faces two removability counts as a result of

several criminal convictions. Supnet has two unrelated convictions for reckless

driving while evading an officer, under California Vehicle Code § 2800.2. The

immigration judge (IJ) found that those qualified as two convictions of “crimes

involving moral turpitude, not arising out of a single scheme of criminal

misconduct,” making Supnet removable under 8 U.S.C. § 1227(a)(2)(A)(ii). In

addition, Supnet has a conviction under California Penal Code § 273a(b) which is

perhaps best characterized as misdemeanor child endangerment. The IJ found this

qualified Supnet for removal under 8 U.S.C. § 1227(a)(2)(E)(i) which includes

crimes of “child abuse, child neglect, and child abandonment.” The IJ also denied

cancellation of removal as a matter of discretion. Supnet appealed the IJ’s decision

to deny cancellation. The BIA adopted and affirmed the IJ’s decisions citing



        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
                                         2
Matter of Burbano. Supnet petitioned this court for review of that order, making a

challenge of unconstitutional vagueness to the child endangerment removability

count and a statutory interpretation challenge to the “crimes involving moral

turpitude” count.

      Almost a year and half after the BIA adopted and affirmed the IJ’s decision,

Supnet filed a motion to reopen with the BIA, challenging his removability on

multiple grounds and alleging ineffective assistance of counsel. The BIA denied

this motion as untimely and found that equitable tolling was inapplicable. Supnet

petitioned this court for review of that order as well, making the same arguments as

presented in the motion to reopen and a new one that he is entitled to relief under

INA § 212(h)(1)(B), codified at 8 U.S.C. § 1182(h)(1)(B).

      First petition for review:

      We lack jurisdiction to consider two of Supnet's claims because he failed to

exhaust them before the BIA. 8 U.S.C. § 1252(d)(1); see also Barron v. Ashcroft,

358 F.3d 674, 677-78 (9th Cir. 2004). This jurisdictional bar applies to Supnet's

claim that reckless driving while evading a police officer is not a “crime involving

moral turpitude” for purposes of removability under 8 U.S.C. § 1227(a)(2)(A)(ii).

Lack of exhaustion also precludes our jurisdiction to hear Supnet’s claim for relief

under § 212(h). Supnet raised neither of these claims in his appeal to the BIA and


                                          3
did not raise the § 212(h) claim even in his motion to reopen. Under the

circumstances of this case, these claims are insufficiently exhausted.

      We also lack jurisdiction to consider Supnet's claim that he is entitled to

cancellation of removal because that relief was denied by the BIA as a matter of

discretion. 8 U.S.C. § 1229b(b)(1)(D); see also Martinez-Rosas v. Gonzales, 424

F.3d 926, 929 (9th Cir. 2005).

      Second petition for review:

      The BIA acted within its discretion in denying Supnet's motion to reopen as

untimely because it was not filed within 90 days of the BIA's final decision on

Supnet’s appeal, 8 C.F.R. § 1003.2(c)(2), and Supnet failed to establish that he

acted with the due diligence required for equitable tolling, see Singh v. Gonzales,

491 F.3d 1090, 1096-97 (9th Cir. 2007).

      We do not reach Supnet's claims regarding his removability count under 8

U.S.C. § 1227(a)(2)(E)(i) because the other count (for “crimes involving moral

turpitude”) independently establishes Supnet's removability.

      Petitions for review DENIED.




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