                                                                           FILED
                            NOT FOR PUBLICATION                             APR 11 2013

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




                            FOR THE NINTH CIRCUIT



MOHAMMED BILAL ISMAIL-YUSUF,                     No. 09-70688

              Petitioner,                        Agency No. A029-541-099

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

              Respondent.



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

                             Submitted April 8, 2013 **
                               Pasadena, California

Before: REINHARDT and MURGUIA, Circuit Judges, and MOLLOY, Senior
District Judge.***

       Mohammed Bilal Ismail-Yusuf, a native and citizen of India, petitions for

review of a Board of Immigration Appeals (“BIA”) order denying his motion to


        *
             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 Donald W. Molloy, Senior United States District
Judge for the District of Montana, sitting by designation.
reopen. We possess jurisdiction under 8 U.S.C. § 1282 and review for an abuse of

discretion. Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007). We deny

in part and dismiss in part the petition for review.

      The BIA acted within its discretion by denying Ismail-Yusuf’s motion as

untimely because it was filed more than five years after the agency’s administrative

order of removal became final. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

§ 1003.2(c)(2). Ismail-Yusuf failed to establish that an exception to the filing

deadline applied, see 8 U.S.C. § 1229a(c)(7)(C)(ii), (iv); 8 C.F.R. § 1003.2(c)(3),

and did not demonstrate the reasonable diligence necessary for equitable tolling of

the deadline, see Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011). The BIA’s

denial of Ismail-Yusuf’s motion to reopen was therefore not arbitrary, irrational, or

contrary to law. Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002).

      We lack jurisdiction over Ismail-Yusuf’s challenges to the underlying merits

of his 2003 removal proceeding. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.

2003). We also lack jurisdiction to review the BIA’s decision not to invoke its sua

sponte authority to reopen proceedings under 8 C.F.R. § 1003.2(a). See Ekimian v.

INS, 303 F.3d 1153, 1159 (9th Cir. 2002).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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