Mariana Susan Theodora Kong v. ERIC H. HOLDER, Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIANA SUSAN THEODORA
KONG,
Petitioner,
v.
ERIC H. HOLDER, Attorney General,
Respondent.
No. 08-72107
Agency No. A075-649-385
MEMORANDUM*
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
FILED
SEP 23 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-72107 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.

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