                                                                              FILED
                            NOT FOR PUBLICATION                                JAN 16 2013

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



                            FOR THE NINTH CIRCUIT


ARI KAHN,                                         No. 08-73544

              Petitioner,                         Agency No. A096-397-085

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

              Respondent.


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

                            Submitted January 14, 2013**
                              San Francisco, California

Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.

       Ari Kahn petitions for review of the Board of Immigration Appeals’ decision

denying his application for adjustment of status. We have jurisdiction under 8

U.S.C. § 1252 and deny the petition for review.



        *
             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).
          Kahn challenges the BIA’s conclusion that he failed to maintain “a lawful

status” for over 180 days. See 8 U.S.C. § 1255(k). Even if we were to accept

Kahn’s arguments that he maintained a lawful status while his application for

extension of status was pending and while his application for adjustment of status

was pending, he still failed to maintain lawful status for a period exceeding 180

days.

          Kahn also argues that the 180-day time limit under § 1255(k) is subject to

equitable tolling and should be tolled in his case. Even assuming that Kahn did not

waive his equitable tolling argument—and even if we were to accept Kahn’s

arguments that the period of failing to maintain lawful status was tolled by Kahn’s

filing an application for extension of status, by DHS’s failure to provide Kahn with

notice of its decision denying extension,1 and by Kahn’s applying for adjustment of

status—Kahn still failed to maintain a lawful status for a period exceeding 180

days. Remand to the BIA to consider the issue of equitable tolling would thus be

futile.

          Finally, the BIA did not err in streamlining the appeal since, even if Kahn

raised the issue, the BIA would not have needed to decide whether equitable tolling


          1
       At best, any failure by DHS to provide Kahn with notice of its decision
could only toll the period until Kahn was served with a Notice to Appear since this
would have put him on notice that his application for extension of status had been
denied.
applied, and thus the issues the BIA actually needed to reach were not novel. See 8

C.F.R. § 1003.1(e)(4)(i).

      PETITION DENIED.
