     Case: 11-60408     Document: 00511871222         Page: 1     Date Filed: 05/30/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 30, 2012
                                     No. 11-60408
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MERSID MEHMEDI-AJVAZOSKA,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A077 800 462


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Mersid Mehmedi-Ajvazoska, a native and citizen of Macedonia, petitions
this court for review of an order from the Board of Immigration Appeals (BIA)
dismissing his appeal from the immigration judge’s denial of his motion to
reopen his removal proceedings and rescind the in absentia removal order issued
against him. The Respondent has filed a motion to dismiss this petition on the
ground that this court lacks jurisdiction to review the BIA’s decision.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-60408   Document: 00511871222     Page: 2   Date Filed: 05/30/2012

                                 No. 11-60408

      There is no dispute that Mehmedi-Ajvazoska’s motion to reopen, which
was his second motion to reopen, was not filed within 180 days after the date of
the order of removal. 8 U.S.C. § 1229a(b)(5)(C)(i); 8 C.F.R. § 1003.23(b)(4)(ii).
In that motion to reopen, Mehmedi-Ajvazoska sought equitable tolling based
upon ineffective assistance of counsel. “[A] request for equitable tolling of a
time- or number-barred motion to reopen on the basis of ineffective assistance
of counsel is in essence an argument that the BIA should have exercised its
discretion to reopen the proceeding sua sponte based upon the doctrine of
equitable tolling.” Ramos-Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008).
We lack jurisdiction to review the BIA’s decision whether to exercise its
discretion to reopen a proceeding sua sponte. Id.
      Accordingly, the motion to dismiss is GRANTED and the petition for
review is DISMISSED.




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