Eugene Pe Benito Supnet 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.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EUGENE PE BENITO SUPNET,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 05-75680
Agency No. A038-560-177
MEMORANDUM *
EUGENE PE BENITO SUPNET,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-72077
Agency No. A038-560-177
On Petition for Review of an Order of the
Board of Immigration Appeals
FILED
DEC 18 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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** The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
2
Submitted October 7, 2009**
Pasadena, California
Before: HALL, W. FLETCHER and CLIFTON, Circuit Judges.
Eugene Supnet, native and citizen of the Philippines, petitions for review of
two orders from the Board of Immigration Appeals (BIA). Supnet has been a legal
resident alien since 1984 but now faces two removability counts as a result of
several criminal convictions. Supnet has two unrelated convictions for reckless
driving while evading an officer, under California Vehicle Code § 2800.2. The
immigration judge (IJ) found that those qualified as two convictions of “crimes
involving moral turpitude, not arising out of a single scheme of criminal
misconduct,” making Supnet removable under 8 U.S.C. § 1227(a)(2)(A)(ii). In
addition, Supnet has a conviction under California Penal Code § 273a(b) which is
perhaps best characterized as misdemeanor child endangerment. The IJ found this
qualified Supnet for removal under 8 U.S.C. § 1227(a)(2)(E)(i) which includes
crimes of “child abuse, child neglect, and child abandonment.” The IJ also denied
cancellation of removal as a matter of discretion. Supnet appealed the IJ’s decision
to deny cancellation. The BIA adopted and affirmed the IJ’s decisions citing

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Matter of Burbano. Supnet petitioned this court for review of that order, making a
challenge of unconstitutional vagueness to the child endangerment removability
count and a statutory interpretation challenge to the “crimes involving moral
turpitude” count.
Almost a year and half after the BIA adopted and affirmed the IJ’s decision,
Supnet filed a motion to reopen with the BIA, challenging his removability on
multiple grounds and alleging ineffective assistance of counsel. The BIA denied
this motion as untimely and found that equitable tolling was inapplicable. Supnet
petitioned this court for review of that order as well, making the same arguments as
presented in the motion to reopen and a new one that he is entitled to relief under
INA § 212(h)(1)(B), codified at 8 U.S.C. § 1182(h)(1)(B).
First petition for review:
We lack jurisdiction to consider two of Supnet's claims because he failed to
exhaust them before the BIA. 8 U.S.C. § 1252(d)(1); see also Barron v. Ashcroft,
358 F.3d 674, 677-78 (9th Cir. 2004). This jurisdictional bar applies to Supnet's
claim that reckless driving while evading a police officer is not a “crime involving
moral turpitude” for purposes of removability under 8 U.S.C. § 1227(a)(2)(A)(ii).
Lack of exhaustion also precludes our jurisdiction to hear Supnet’s claim for relief
under § 212(h). Supnet raised neither of these claims in his appeal to the BIA and

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did not raise the § 212(h) claim even in his motion to reopen. Under the
circumstances of this case, these claims are insufficiently exhausted.
We also lack jurisdiction to consider Supnet's claim that he is entitled to
cancellation of removal because that relief was denied by the BIA as a matter of
discretion. 8 U.S.C. § 1229b(b)(1)(D); see also Martinez-Rosas v. Gonzales, 424
F.3d 926, 929 (9th Cir. 2005).
Second petition for review:
The BIA acted within its discretion in denying Supnet's motion to reopen as
untimely because it was not filed within 90 days of the BIA's final decision on
Supnet’s appeal, 8 C.F.R. § 1003.2(c)(2), and Supnet failed to establish that he
acted with the due diligence required for equitable tolling, see Singh v. Gonzales,
491 F.3d 1090, 1096-97 (9th Cir. 2007).
We do not reach Supnet's claims regarding his removability count under 8
U.S.C. § 1227(a)(2)(E)(i) because the other count (for “crimes involving moral
turpitude”) independently establishes Supnet's removability.
Petitions for review DENIED.

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