Kelmer Da Silva Neves v. Eric H. Holder, Jr., Attorney General

Pursuant to Fed. R. App. P. 43(c)(2), Attorney General *
Eric H. Holder, Jr. has been substituted for former Attorney
General Michael B. Mukasey as the respondent.
Of the Tenth Circuit, sitting by designation. **
United States Court of Appeals
For the First Circuit
No. 07-1091
KELMER DA SILVA NEVES,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, *
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Ebel, Circuit Judges. **
Saher Joseph Macarius with whom Audrey Botros and Law Offices
of Saher Joseph Macarius were on brief for petitioner.
Stacey I. Young, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, with whom Michael F. Hertz,
Acting Assistant Attorney General, and J. Max Weintraub, Senior
Litigation Counsel, were on brief for respondent.
June 4, 2009

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PER CURIAM. Petitioner Kelmer Da Silva Neves, a native
and citizen of Brazil, petitions for review of the denial by the
Board of Immigration Appeals of his second motion to reopen, which
the Board denied on December 14, 2006. Neves's first motion to
reopen was denied on December 3, 2003 due to his failure to
exercise due diligence in seeking reopening of a September 25, 2001
decision by the Board, which dismissed his asylum appeal.
The second motion to reopen, the denial of which is now
before us, was filed on June 30, 2006 and was denied by the Board
as untimely and numerically barred. See 8 U.S.C. § 1229a(c)(7)(A);
8 C.F.R. § 1003(c)(2). Neves's second motion sought reopening of
the Board's December 3, 2003 decision.
The Board rejected Neves's argument that the time and
number limits should be equitably tolled so he could seek
adjustment of status under § 245(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1255(i). See 8 C.F.R. § 1003.2(c)(2).
The Board found that while Neves had substantially complied with
the requirements to show ineffective assistance of counsel under In
re Lozada, 19 I. & N. Dec. 637 (BIA 1988), he nonetheless had
failed to show that he exercised due diligence in seeking
reopening.
We need not and do not decide whether the statutory
provision limiting motions to reopen is subject to equitable
tolling. Even if it were, the equitable tolling doctrine is

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Because the BIA denial was based on a lack of diligence, 1
the claim of ineffective assistance of counsel is not before us.
Indeed, the BIA found lack of diligence even assuming counsel was
ineffective. Further, even if we had jurisdiction, the ineffective
assistance claim is waived. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived.").
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unavailable to a party who has failed to exercise due diligence, as
the BIA found here. Boakai v. Gonzales, 447 F.3d 1, 3 (1st Cir.
2006) ("[I]f the equitable tolling doctrine is available at all,
the petitioner must first show that he has acted with due
diligence.").
No constitutional claim or issue of law is raised by
petitioner as to the Board's finding of lack of diligence, contrary
to the assertions in his reply brief. And where the Board has 1
made a factual determination of lack of due diligence not raising
an issue of law or a constitutional claim, under the provisions of
the REAL ID Act, 8 U.S.C. § 1252(a)(2)(B)(i), (D), we have held we
lack jurisdiction to review the Board's decision. Ouk v. Mukasey,
551 F.3d 82, 83-84 (1st Cir. 2008); Fustaguio Do Nascimento v.
Mukasey, 549 F.3d 12, 18-19 (1st Cir. 2008); see also Boakai, 447
F.3d at 4.
The Board further declined to exercise its authority to
sua sponte reopen. We have no jurisdiction over this latter
decision. Peralta v. Holder, No. 08-2073, ___ F.3d ___, 2009 WL

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1475557, at *6-8 (1st Cir. May 28, 2009); Luis v. INS, 196 F.3d 36,
40 (1st Cir. 1999).
The petition is dismissed for lack of jurisdiction.

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