                                                                           FILED
                             NOT FOR PUBLICATION
                                                                            MAY 10 2016
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT

PARAMJIT SINGH,                                  No. 13-72124

              Petitioner,                        Agency No. A098-537-234

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

              Respondent.


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

                              Submitted May 5, 2016**
                                Seattle, Washington

Before: GRABER, BERZON, and MURGUIA, Circuit Judges.

      Petitioner Paramjit Singh seeks review of the Board of Immigration

Appeals’ ("BIA") denial of his motion to reopen. Reviewing for abuse of

discretion, Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014), we dismiss in part and

deny in part the petition.


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
      1. We lack jurisdiction over the BIA’s discretionary decision not to invoke

its sua sponte authority to reopen proceedings. Id. at 609–10. Accordingly, we

dismiss that part of Petitioner’s petition.

      2. Petitioner filed the motion to reopen well after the statutory deadline of

90 days following the entry of the final order of removal. The BIA correctly held

that none of the statutory or regulatory exceptions to the time limit applies here. 8

U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3). The order of removal was not

entered in absentia, 8 U.S.C. § 1229a(c)(7)(C)(iii); the motion asserted the

existence of neither changed country conditions nor a battered spouse, child, or

parent, id. § 1229a(c)(7)(C)(ii) & (iv); and the government did not join the motion,

8 C.F.R. § 1003.2(c)(3)(iii) & (iv).

      3. The BIA did not abuse its discretion in declining to apply equitable

tolling. Substantial evidence supports the BIA’s conclusion that the medical

evidence demonstrated, at most, mental incompetence in the preceding few

years—well after the entry of the final order of removal. Accordingly, even

assuming that mental incompetence could qualify as "error" for purposes of

equitable tolling, Petitioner has not shown that he was "prevented from filing

because of a deception, fraud, or error." Avagyan v. Holder, 646 F.3d 672, 679

(9th Cir. 2011).


                                              2
      4. Because the motion to reopen was untimely, the BIA properly declined to

reach the merits of Petitioner’s new application for humanitarian asylum. See

Najmabadi v. Holder, 597 F.3d 983, 992 n.2 (9th Cir. 2010) (holding that, because

the motion to reopen was untimely, the BIA "was entitled to deny the motion

solely on [that] ground[]").

      Petition DISMISSED in part and DENIED in part.




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