Mariana Kong v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION SEP 23 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

MARIANA SUSAN THEODORA No. 08-72107
KONG,
Agency No. A075-649-385
Petitioner,

v. MEMORANDUM *

ERIC H. HOLDER, Attorney General,

Respondent.

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

Submitted September 13, 2010 **

Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

Mariana Susan Theodora Kong, a native and citizen of Indonesia, petitions

for review of the Board of Immigration Appeals’ order denying her motion to

reopen proceedings based on ineffective assistance of counsel. We have

jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of

*
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).
a motion to reopen. See Hernandez v. Mukasey, 524 F.3d 1014, 1017 (9th Cir.

2008). We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying Kong’s motion as untimely,

as it was filed almost five years after the BIA’s final order in her case, see 8 C.F.R.

§ 1003.2(c)(2), and she failed to establish a basis for equitable tolling, see

Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir. 2003); see also Hernandez, 524

F.3d at 1020 (knowing reliance upon a non-attorney cannot form the basis for a

claim of ineffective assistance of counsel).

We lack jurisdiction to review the BIA’s decision not to invoke its sua

sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159

(9th Cir. 2002).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

2 08-72107