Lee Kyung-Sae v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEE KYUNG-SAE,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 13-72173
Agency No. A078-508-177
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 17, 2015**
Before: O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.
Lee Kyung-Sae, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) order denying his motion to reopen removal
proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252.
FILED
FEB 27 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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We review for abuse of discretion the denial of a motion to reopen and review de
novo constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th
Cir. 2005). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in dismissing Kyung-Sae’s appeal of
the IJ’s order denying his motion to reopen as untimely, where he filed the motion
more than nine years after his in absentia order of removal became final, see 8
C.F.R. § 1003.23(b)(1), (4)(ii), and he has not established the due diligence
required for equitable tolling of the filing deadline, see Avagyan v. Holder, 646
F.3d 672, 679-80 (9th Cir. 2011) (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).
It follows that Kyung-Sae’s due process claim fails. See Lata v. INS, 204
F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process challenge, an alien
must show error and prejudice).
To the extent Kyung-Sae contends the BIA erred in declining to invoke its
sua sponte authority to reopen proceedings, we lack jurisdiction to consider that
claim. See Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24 (9th Cir. 2011) (this
court lacks jurisdiction to review the BIA’s sua sponte determination).
13-72173 2

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In light of our disposition, we do not reach Kyung-Sae’s remaining
contentions.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
13-72173 3

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