Ari Kahn v. ERIC H. HOLDER, Jr., 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NOT FOR PUBLICATION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
ARI KAHN,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-73544
Agency No. A096-397-085
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 14, 2013 **
San Francisco, California
Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.
Ari Kahn petitions for review of the Board of Immigration Appeals’ decision
denying his application for adjustment of status. We have jurisdiction under 8
U.S.C. § 1252 and deny the petition for review.
FILED
JAN 16 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 At best, any failure by DHS to provide Kahn with notice of its decision
could only toll the period until Kahn was served with a Notice to Appear since this
would have put him on notice that his application for extension of status had been
denied.
Kahn challenges the BIA’s conclusion that he failed to maintain “a lawful
status” for over 180 days. See 8 U.S.C. § 1255(k). Even if we were to accept
Kahn’s arguments that he maintained a lawful status while his application for
extension of status was pending and while his application for adjustment of status
was pending, he still failed to maintain lawful status for a period exceeding 180
days.
Kahn also argues that the 180-day time limit under § 1255(k) is subject to
equitable tolling and should be tolled in his case. Even assuming that Kahn did not
waive his equitable tolling argument—and even if we were to accept Kahn’s
arguments that the period of failing to maintain lawful status was tolled by Kahn’s
filing an application for extension of status, by DHS’s failure to provide Kahn with
notice of its decision denying extension, 1 and by Kahn’s applying for adjustment of
status—Kahn still failed to maintain a lawful status for a period exceeding 180
days. Remand to the BIA to consider the issue of equitable tolling would thus be
futile.
Finally, the BIA did not err in streamlining the appeal since, even if Kahn
raised the issue, the BIA would not have needed to decide whether equitable tolling

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applied, and thus the issues the BIA actually needed to reach were not novel. See 8
C.F.R. § 1003.1(e)(4)(i).
PETITION DENIED.

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