NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARKOS ABELYAN, No. 15-73263
Petitioner, Agency No. A097-113-104
v.
MEMORANDUM *
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Markos Abelyan, a native and citizen of Armenia, 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. We review
for abuse of discretion the denial of a motion to reopen. Avagyan v. Holder, 646
*
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).
F.3d 672, 674 (9th Cir. 2011). We deny in part and dismiss in part the petition for
review.
The BIA did not abuse its discretion in denying the motion to reopen as
untimely, where it was filed more than ten years after the final administrative order
of removal, see 8 C.F.R. § 1003.2(c)(2), and Abelyan failed to establish the due
diligence required for equitable tolling of the filing deadline, see Avagyan, 646
F.3d at 679 (equitable tolling is available to an alien who is prevented from timely
filing a motion to reopen due to deception, fraud, or error, as long as petitioner
exercises due diligence in discovering such circumstances).
Contrary to Abelyan’s contention, the BIA applied the proper diligence
standard and did not ignore evidence or contentions. See Najmabadi v. Holder,
597 F.3d 983, 990 (9th Cir. 2010) (the agency must consider the issues raised and
express its decision “in terms sufficient to enable a reviewing court to perceive that
it has heard and thought and not merely reacted” (citation and internal quotation
marks omitted)); Cole v. Holder, 659 F.3d 762, 771-72 (9th Cir. 2011) (the BIA
need not discuss each piece of evidence, and the agency’s general statement that it
considered all of the evidence may be sufficient).
Because the timeliness determination is dispositive, we do not address
Abelyan’s contentions regarding prejudice.
2 15-73263
We lack jurisdiction to consider Abelyan’s contention that the agency
abused its discretion in declining to reopen his case sua sponte. See Ekimian v.
I.N.S., 303 F.3d 1153, 1159-60 (9th Cir. 2002); Mejia-Hernandez v. Holder, 633
F.3d 818, 823-824 (9th Cir. 2011); cf. Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir.
2016). Abelyan urges us to reconsider our holding in Ekimian, but a three-judge
panel cannot overrule circuit precedent in the absence of an intervening decision
from a higher court or en banc decision of this court. See Avagyan, 646 F.3d at
677.
We deny the request for EAJA fees as moot.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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