                                                                              FILED
                            NOT FOR PUBLICATION                                JUN 23 2015

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



                            FOR THE NINTH CIRCUIT


DEWAND CHAND, AKA Dewan Puri,                    No. 11-70835

              Petitioner,                        Agency No. A038-634-403

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.



DEWAND CHAND, AKA Dewand Chand                   No. 11-73242
AKA Dewan Puri,
                                                 Agency No. A038-634-403
              Petitioner,

 v.

LORETTA E. LYNCH, Attorney General,

              Respondent.


                     On Petitions for Review of Orders 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 June 1, 2015**
                                 Seattle, Washington

Before:        O’SCANNLAIN, TASHIMA, and McKEOWN, Circuit Judges.

      Dewand Puri,1 a native and citizen of India, petitions for review of the Board

of Immigration Appeals’ (“BIA”) denial of his motion to reopen and denial of his

motion to reconsider. We review the BIA’s denial of these motions for abuse of

discretion, see Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002), and we

deny in part and dismiss in part.

      1.       Puri argues that the BIA erred in deciding not to toll the filing

deadline for his motion to reopen. Whether or not the filing deadline should have

been equitably tolled is a mixed question of law and fact. Ghahremani v.

Gonzales, 498 F.3d 993, 998-99 (9th Cir. 2007). As a result, pursuant to 8 U.S.C.




          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
      1
          Sometime between 1995 and 1997, the petitioner started to go by the
name Dewand Puri. However, he was convicted for his crimes under the name
Dewand Chand.

                                            2
§ 1252(a)(2)(D), we have jurisdiction to review the BIA’s denial of Puri’s motion

to reopen.2 Id.

        The BIA did not abuse its discretion in denying Puri’s motion to reopen

because the motion was filed almost five years after the date on which the BIA

rendered its decision dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2),

and Puri failed to demonstrate that he acted with the due diligence required for

equitable tolling. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003).

        2.    On his motion to reconsider, Puri has not presented any argument in

his briefs in support of this petition for review. Because the failure to file an

opening brief (addressing the merits of the petition) is tantamount to failure to

prosecute an appeal, this petition for review will be dismissed. See Ninth Cir. R.

42-1.

        In No. 11-70835, the petition for review is DENIED.

        In No. 11-73242, the petition for review is DISMISSED.




        2
             The recent Supreme Court case, Reyes Mata v. Lynch, 2015 WL
2473335 (U.S. June 15, 2015), does not affect this case because we conclude that
we have jurisdiction over this petition for review of the BIA’s denial of the motion
to reopen.

                                           3
