United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 22, 2007
Charles R. Fulbruge III
Clerk
No. 06-60266
Summary Calendar
THOMAS OKPOJU AMALI,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A74 699 170
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Thomas Okpoju Amali has filed a petition for review of a
decision of the Board of Immigration Appeals (BIA) denying his
untimely motion to reopen his immigration proceedings. Amali
argues that the BIA should have held that the 90-day period was
equitably tolled because he had new evidence that was not
available during the previous proceedings, the approval of an
I-130 relative immigrant visa petition filed by his wife, Almetta
Russel Amali, who is a United States citizen. Amali has not
shown that his case involves rare and exceptional circumstances
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-60266
-2-
warranting equitable tolling. See Liu v. Gonzales, 166 F. App’x
159, 160 (5th Cir. 2006); Torabi v. Gonzales, 165 F. App’x 326,
329 (5th Cir. 2006). However, even if Amali were entitled to
equitable tolling, Amali would not have been entitled to
adjustment of status relief based on the approval of his wife’s
I-130 application because the Immigration Judge found that
Amali’s prior asylum application was frivolous and, therefore,
Amali was not eligible for adjustment of status under 8 U.S.C.
§ 1158(d)(6). See Mukadi v. Ashcroft, 163 F. App’x 303, 305 (5th
Cir. 2006).
Amali argues that the BIA violated his due process rights
by refusing to equitably toll the 90-day period. Because the
decision to grant or deny a motion to reopen is discretionary
and the denial of discretionary relief does not amount to a
deprivation of a liberty interest, Amali cannot establish a due
process violation. See Altamirano-Lopez v. Gonzales, 435 F.3d
547, 550 (5th Cir. 2006). Because Amali does not allege that
a statutory or regulatory exception applies and because he has
not shown that he is entitled to equitable tolling, we lack
jurisdiction to review the BIA’s denial of the motion to reopen
as there is no “‘meaningful standard against which to review’”
such a decision. See Panova-Bohannan v. Gonzales, 157 F. App’x
706, 707 & n.2 (5th Cir. 2005); see also Liu v. Gonzales, 166 F.
App’x 159, 160 (5th Cir. 2006).
No. 06-60266
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Amali also argues that the BIA should have exercised its
sua sponte authority to reopen the case based on exceptional
circumstances. This court lacks jurisdiction to consider whether
Amali has shown exceptional circumstances that would warrant the
BIA’s sua sponte reopening of his removal proceedings. See
Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249 (5th Cir. 2004).
PETITION DISMISSED.