IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 21, 2008
No. 07-60373
Summary Calendar Charles R. Fulbruge III
Clerk
TAO YANG
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A77 819 912
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Tao Yang, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ (BIA) denial of his third motion to reopen his 1999
removal proceedings. Yang sought to have the BIA reopen the proceedings
pursuant to its sua sponte authority in 8 C.F.R. § 1003.2(a). The BIA
determined that Yang’s motion was time and number barred, that ineffective
assistance could not excuse his failure to file a timely motion to reopen, and that
equitable tolling was not warranted because Yang had not exercised due
*
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should not be published and is not precedent except under the limited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. 07-60373
diligence. Yang argues that the BIA erred in denying the motion because he
established exceptional circumstances based on ineffective assistance of counsel.
He also asserts that the time and number limitations should be equitably tolled
due to the ineffective assistance of counsel.
Because the BIA has complete discretion in deciding whether to reopen
removal proceedings sua sponte, see § 1003.2(a), there is no meaningful standard
against which to review this decision, and this court lacks jurisdiction over it.
See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir. 2004). Even
if equitable tolling applies to motions to reopen and Yang’s equitable tolling
arguments could be considered, he has not established that the BIA abused its
discretion in holding that he was not entitled to equitable tolling because he had
not shown due diligence. See Manzano-Garcia v. Gonzales, 413 F.3d 462, 469
(5th Cir. 2005).
The petition for review is DENIED.
2