                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 16 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KWOK CHEUNG CHOW,                                No. 05-74671

              Petitioner,                        Agency No. A035-708-186

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

              Respondent.



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

                            Submitted February 8, 2010 **
                              San Francisco, California

Before: HALL and McKEOWN, Circuit Judges, and CAMPBELL, *** District
Judge.




        *
             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 David G. Campbell, United States District Judge for
the District of Arizona, sitting by designation.
      Kwok Cheung Chow 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.

       On July 16, 2002, an immigration judge determined that Chow was subject

to removal based upon Chow’s admissions and his record of convictions. The

immigration judge found that the only relief for which Chow was eligible was

deferral of removal under the Convention against Torture (“CAT”). Chow

declined to file the required application for CAT relief. On February 14, 2003, the

BIA dismissed Chow’s appeal from the immigration judge’s decision.

      On May 16, 2005—more than two years later—Chow filed a motion to

reopen the proceedings. Because a party must move to reopen deportation

proceedings within 90 days of the final administrative proceeding, Chow’s motion

is time-barred. 8 C.F.R. 1003.2(c)(2). Nonetheless, Chow argues that the time

limit to file a motion to reopen should be equitably tolled because his due process

rights were violated at the removal proceedings. This argument is presented for the

first time on appeal and we do not have jurisdiction to consider it. See Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (“[Section] 1252(d)(1) mandates

exhaustion and therefore generally bars us, for lack of subject-matter jurisdiction,

from reaching the merits of a legal claim not presented in administrative

proceedings below.”).
      To be sure, even without equitable tolling the BIA has authority to “reopen

or reconsider on its own motion any case in which it has rendered a decision.”

8 C.F.R. § 1003.2(a). But the BIA declined to exercise its sua sponte authority

here, and we do not have jurisdiction to review its decision. See Ekimian v.

Immigration & Naturalization Serv., 303 F.3d 1153, 1159 (9th Cir. 2002) (holding

that exercise of BIA’s sua sponte power not subject to judicial review).

      For the foregoing reasons, Chow’s petition for review is DENIED.
