Neth v. Holder
Docket: No. 05-76192
Court: Court of Appeals for the Ninth Circuit; September 2, 2009; Federal Appellate Court
Mony Neth, a Cambodian citizen, petitions for review of the Board of Immigration Appeals (BIA) order that denied his motion to reopen and reconsider a prior order. The court has jurisdiction under 8 U.S.C. § 1252 and reviews the BIA's denial for abuse of discretion while legal questions are reviewed de novo. The court denies in part and dismisses in part Neth's petition. The BIA was found not to have abused its discretion in denying Neth’s motion to reopen as it was filed more than 90 days after the final order, in violation of 8 C.F.R. § 1003.2(c)(2). Neth did not demonstrate eligibility for any exceptions to this time limit per 8 C.F.R. § 1003.2(c)(3)(i)-(iv). The court did not consider Neth’s arguments regarding equitable tolling raised in his reply brief since they were not presented in his opening brief. Furthermore, the court lacks jurisdiction to review the BIA's decision not to exercise its sua sponte authority to reopen removal proceedings under 8 C.F.R. § 1003.2(a). Neth’s argument that the repeal of habeas jurisdiction over final removal orders by the REAL ID Act violates the Suspension Clause is rejected, as it is contrary to established precedent, specifically Singh v. Mukasey, which allows for a 30-day window post-REAL ID enactment for filing petitions for review. Lastly, the petition for review of the BIA’s April 22, 2005, order denying his motion to reconsider is also dismissed as untimely. The court concludes by denying the petition in part and dismissing it in part, noting that the disposition is not intended for publication and is not to be treated as precedent except under specific Ninth Circuit rules.