Khalil Hassan v. Loretta E. Lynch

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 30 2015

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

KHALIL MOUSA HASSAN, No. 13-73685

Petitioner, Agency No. A079-148-437

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

Respondent.

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

Submitted June 22, 2015 **

Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.

Khalil Mousa Hassan, a native and citizen of Lebanon, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen

removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review

for abuse of discretion the denial of a motion to reopen, and review de novo

*
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).
constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.

2005). We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion by denying as untimely Hassan’s

motion to reopen based on the alleged ineffective assistance of his prior counsel

where he filed the motion approximately eight years after his final order of

removal. See 8 C.F.R. § 1003.2(c)(2). He did not submit evidence sufficient to

demonstrate the due diligence necessary to warrant equitable tolling of the filing

deadline. See Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (diligence

requires petitioner to take “reasonable steps to investigate [any] suspected fraud”

or make “reasonable efforts to pursue relief”); Iturribarria v. INS, 321 F.3d 889,

899 (9th Cir. 2003) (beginning 90-day limitations period when petitioner became

aware of fraud). Hassan’s due process claim therefore fails. See Lata v. INS, 204

F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process challenge, an alien

must show error and prejudice).

To the extent Hassan contends the BIA erred in declining to reopen

proceedings sua sponte, we lack jurisdiction to consider this contention. See

Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24 (9th Cir. 2011).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

2 13-73685