FILED
NOT FOR PUBLICATION FEB 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KWOK CHEUNG CHOW, No. 05-74671
Petitioner, Agency No. A035-708-186
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 8, 2010 **
San Francisco, California
Before: HALL and McKEOWN, Circuit Judges, and CAMPBELL, *** District
Judge.
*
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 David G. Campbell, United States District Judge for
the District of Arizona, sitting by designation.
Kwok Cheung Chow 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.
On July 16, 2002, an immigration judge determined that Chow was subject
to removal based upon Chow’s admissions and his record of convictions. The
immigration judge found that the only relief for which Chow was eligible was
deferral of removal under the Convention against Torture (“CAT”). Chow
declined to file the required application for CAT relief. On February 14, 2003, the
BIA dismissed Chow’s appeal from the immigration judge’s decision.
On May 16, 2005—more than two years later—Chow filed a motion to
reopen the proceedings. Because a party must move to reopen deportation
proceedings within 90 days of the final administrative proceeding, Chow’s motion
is time-barred. 8 C.F.R. 1003.2(c)(2). Nonetheless, Chow argues that the time
limit to file a motion to reopen should be equitably tolled because his due process
rights were violated at the removal proceedings. This argument is presented for the
first time on appeal and we do not have jurisdiction to consider it. See Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (“[Section] 1252(d)(1) mandates
exhaustion and therefore generally bars us, for lack of subject-matter jurisdiction,
from reaching the merits of a legal claim not presented in administrative
proceedings below.”).
To be sure, even without equitable tolling the BIA has authority to “reopen
or reconsider on its own motion any case in which it has rendered a decision.”
8 C.F.R. § 1003.2(a). But the BIA declined to exercise its sua sponte authority
here, and we do not have jurisdiction to review its decision. See Ekimian v.
Immigration & Naturalization Serv., 303 F.3d 1153, 1159 (9th Cir. 2002) (holding
that exercise of BIA’s sua sponte power not subject to judicial review).
For the foregoing reasons, Chow’s petition for review is DENIED.