     Case: 16-60718      Document: 00514273322         Page: 1    Date Filed: 12/14/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-60718                                   FILED
                                  Summary Calendar                         December 14, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
PEJMAN NASSIRI,

                                                 Petitioner

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A076 893 277


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges
PER CURIAM: *
       Petitioner Pejman Nassiri, a native and citizen of Iran, petitions for
review of an order of the Board of Immigration Appeals (BIA) dismissing his
appeal of the denial of his motion to reconsider his 2005 removal order. The
BIA denied the motion as untimely and declined to reconsider the removal
order sua sponte. Nassiri asserts that (1) his case warranted sua sponte
reconsideration; (2) his statutory motion to reconsider was timely because the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-60718      Document: 00514273322   Page: 2   Date Filed: 12/14/2017


                                 No. 16-60718

filing period had been equitably tolled; (3) his due process rights had been
violated by a defective Notice to Appear (NTA) and removal hearing; (4) the
removal order was null because the grounds for removal were ultra vires and
the defective NTA deprived the immigration judge (IJ) of jurisdiction; and (5)
the BIA abused its discretion by issuing a single-member summary affirmance
of the IJ’s decision.
      We note initially that “an alien’s failure to exhaust his administrative
remedies serves as a jurisdictional bar to our consideration of the issue.” Wang
v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001). The BIA did not consider
Nassiri’s new claims on administrative appeal that: (1) his due process rights
were violated by a defective NTA and removal hearing; (2) the removal order
was a nullity because the grounds for removal were ultra vires and the
defective NTA deprived the IJ of jurisdiction; and (3) equitable tolling was
justified by the exceptional circumstance that, six years after his removal, the
BIA issued a decision rejecting the statutory interpretation that had rendered
him removable. We lack jurisdiction to consider these claims because they are
administratively unexhausted. See Eduard v. Ashcroft, 379 F.3d 182, 195 &
n.14 (5th Cir. 2004); cf. Lopez-Dubon v. Holder, 609 F.3d 642, 644-45 (5th Cir.
2010).
      “An alien seeking to reopen his removal proceedings has two options:
(1) he can invoke the court’s regulatory power to sua sponte reopen proceedings
under either 8 C.F.R. § 1003.23(b) or 8 C.F.R. § 1003.2(a); or (2) he can invoke
his statutory right to reopen proceedings under 8 U.S.C. § 1229a(c)(7).” Lugo-
Resendez v. Lynch, 831 F.3d 337, 340-41 (5th Cir. 2016) (internal footnote
omitted). Here, Nassiri unsuccessfully requested both types of relief.
      An IJ and the BIA have complete discretion to refuse to exercise their
regulatory power to sua sponte reopen or reconsider a removal order. See



                                       2
    Case: 16-60718    Document: 00514273322     Page: 3   Date Filed: 12/14/2017


                                 No. 16-60718

Gonzalez-Cantu v. Sessions, 866 F.3d 302, 306 (5th Cir. 2017). We therefore
lack jurisdiction to consider the BIA’s refusal to exercise its regulatory power
to reconsider or reopen Nassiri’s removal order sua sponte. See id.
      We do have jurisdiction to review the denial of a statutory motion to
reopen or reconsider a removal order, even when the denial was based on
untimeliness. See Mata v. Lynch, 135 S. Ct. 2150, 2154-55 (2015). We have
held that statutory motions to reopen are subject to equitable tolling, see Lugo-
Resendez, 831 F.3d at 344, and Nassiri asserts that equitable tolling principles
likewise apply to statutory motions to reconsider. Even if Nassiri is correct in
that regard, there is no merit to his equitable tolling contention based on the
government’s alleged misfeasance in omitting from the NTA his date of
admission into the United States. Nassiri has offered no legal support for his
insistence that such an omission constitutes misfeasance or an error of any
kind. See 8 C.F.R. § 1003.15(b)-(c); 8 U.S.C. § 1229(a)(1).
      Neither is there merit to Nassiri’s equitable tolling argument based on
his reasonable diligence in promptly filing his motion for reconsideration once
he discovered that he had putatively been removed illegally. Nassiri’s
argument requires that the filing period was equitably tolled, first during the
ten years following his removal during which he was statutorily inadmissible
and then until his counsel advised him that his removal was unlawful. Even
if those assertions are accepted for the sake of argument, Nassiri has failed to
allege the specifics of a timeline that would render his motion to reconsider or
reopen timely. See Gonzalez-Cantu, 866 F.3d at 305 & n.2.
      Nassiri’s affidavit states that he requested his family’s assistance in
obtaining legal counsel at some point during December 2015, but he does not
identify the date on which he discovered that he had allegedly been deported
illegally. Logic dictates that such discovery must have occurred before January



                                       3
    Case: 16-60718     Document: 00514273322      Page: 4   Date Filed: 12/14/2017


                                  No. 16-60718

29, 2016, when counsel enrolled on Nassiri’s behalf and informed the
government that his deportation was unlawful. Nassiri’s motion for
reconsideration was not filed until April 14, 2016, so it was clearly not filed
within thirty days following his discovery and thus was untimely under the
filing period for reconsideration motions.       See § 1229a(c)(6)(B).    Even if
considered a motion to reopen subject to a 90-day deadline, Nassiri’s motion
would be timely only if he did not discover that his deportation was unlawful
until January 15, 2016. See § 1229a(c)(7)(C)(i). Nassiri has not identified any
specific discovery date, so he has failed to provide the necessary factual support
to prove his assertion that his motion to reopen was timely because the filing
period had been equitably tolled until he discovered that his deportation was
unlawful. See Gonzalez-Cantu, 866 F.3d at 305.
      Finally, there is no merit to Nassiri’s claim that the BIA abused its
discretion by issuing a single-member summary affirmance. See Eduard, 379
F.3d at 195 n.15.
      Nassiri’s petition for review is DISMISSED in part for lack of jurisdiction
and DENIED in part.




                                        4
