Denny Kombaitan v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENNY KOMBAITAN,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-71991
Agency No. A096-351-704
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 22, 2015**
Before: GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.
Denny Kombaitan, a native and citizen of Indonesia, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
for abuse of discretion the BIA’s denial of a motion to reopen, Mohammed v.
FILED
APR 30 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).

-- 1 of 3 --

Gonzales, 400 F.3d 785, 791 (9th Cir. 2005), and we deny in part and dismiss in
part the petition for review.
The BIA did not abuse its discretion in denying Kombaitan’s motion to
reopen as untimely, where it was filed seven years after the order of removal
became final, see 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2) (a motion
to reopen must be filed within 90 days of the final order of removal), and
Kombaitan has not established that any statutory or regulatory exception applies,
see 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3).
Kombaitan has waived any challenge to the BIA’s dispositive determination
that he has not established the due diligence necessary to equitably toll the filing
deadline. See Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (the deadline
for filing a motion to reopen can be equitably tolled “when a petitioner is prevented
from filing because of deception, fraud, or error, as long as petitioner acts with due
diligence” in discovering such circumstances).
To the extent Kombaitan contends his motion was timely as a motion to
reconsider based on changes in law, we lack jurisdiction to review this contention
because it was not raised before the BIA and is therefore unexhausted. See Tijani
v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction to
13-71991 2

-- 2 of 3 --

consider legal claims not presented in an alien’s administrative proceedings before
the BIA).
In light of this disposition, we do not reach Kombaitan’s remaining
contentions.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
13-71991 3

-- 3 of 3 --