FILED
NOT FOR PUBLICATION
DEC 12 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IMAD ABOUD; et al., No. 14-71199
Petitioners, Agency Nos. A098-515-824
A098-150-502
v. A098-150-503
A098-150-504
JEFFERSON B. SESSIONS III, Attorney A098-150-505
General, A098-150-506
Respondent.
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 8, 2017**
San Francisco, California
Before: M. SMITH and IKUTA, Circuit Judges, and HUMETEWA,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Diane J. Humetewa, United States District Judge for
the District of Arizona, sitting by designation.
Imad, Rodina, Hanin, Shirin, Nadin, and Maron Aboud (collectively, the
Abouds) petition for review of the Board of Immigration Appeals’s (BIA) order
denying their second motion to reopen removal proceedings and to reissue its prior
decision denying certification.1 We have jurisdiction under 8 U.S.C. § 1252. Mata
v. Lynch, 135 S. Ct. 2150, 2154–55 (2015).
The BIA denied the Abouds’ second motion to reopen on the ground that it
was time- and number-barred. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R.
§ 1003.2(c)(2). The Abouds challenge this ruling solely on the ground that the
BIA should have equitably tolled those limitations. We lack jurisdiction to
consider this argument, however, because the Abouds failed to exhaust it before
the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). The Abouds
did not expressly ask the BIA to exercise its equitable powers to excuse the
applicable time and number bars, nor did their motion implicitly raise this
argument by putting “precisely those [facts] needed to support an equitable tolling
argument” before the BIA. Socop–Gonzalez v. INS, 272 F.3d 1176, 1184 (9th Cir.
2001) (en banc). Nor did the BIA address or even mention equitable tolling,
1
The BIA’s order also dismissed the Abouds’ appeal of the Immigration
Judge’s denial of their first motion to reopen removal proceedings. The Abouds
have waived any challenge to that ruling by failing to raise an argument in their
opening brief. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919
(9th Cir. 2001).
2
further making it clear that the Abouds’ motion failed to put the issue “before the
BIA such that it had the opportunity to correct its error.” Garcia v. Lynch, 786
F.3d 789, 793 (9th Cir. 2015) (quoting Figueroa v. Mukasey, 543 F.3d 487, 492
(9th Cir. 2008)).2
PETITION DENIED.
2
Since we lack jurisdiction to consider equitable tolling, and the Abouds’
second motion to reopen is time- and number-barred, see 8 U.S.C.
§ 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2), we do not address the BIA’s
alternative conclusion that the Abouds failed to comply with the requirements of
Matter of Lozada, 19 I & N Dec. 637, 639 (BIA 1988).
3