NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAY YE, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 20-71148 

Agency No. A023-781-126 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted June 11, 2021**

Pasadena, California

Before: MURGUIA, BADE, and LEE, Circuit Judges.

May Ye, a native and citizen of Cambodia, challenges the denial of his 

motion to reopen and the Board of Immigration Appeals’ (“BIA”) dismissal of 

Ye’s appeal of an immigration judge’s (“IJ”) denial of sua sponte reopening. Our 

jurisdiction is governed by 8 U.S.C. § 1252. Because the BIA adopted the IJ’s 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

JUN 24 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

decision under Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), and provided

its own reasoning, “we review both the IJ’s and the BIA’s decisions.” See Ali v. 

Holder, 637 F.3d 1025, 1028 (9th Cir. 2011). We deny the petition in part and 

dismiss it in part.

1. Ye asserts that the denial of his motion to reopen as untimely was 

erroneous. We review the denial of a motion to reopen for abuse of discretion. 

Luna v. Holder, 659 F.3d 753, 758 (9th Cir. 2011). Ye sought reopening based on 

the successful withdrawal of the guilty plea that he entered in 2005 for violation of 

section 69.50.401 of the Revised Code of Washington, which resulted in the

conviction that made him removable.

Both the BIA and IJ applied the correct legal standard and did not err in

concluding that Ye is not entitled to equitable tolling because the record supports 

that he failed to show he acted with due diligence. See Lona v. Barr, 958 F.3d 

1225, 1230, 1232 (9th Cir. 2020). Ye did not sufficiently explain why he waited 

approximately eight years to move to withdraw his guilty plea. While Ye asserts 

that Washington law required that he wait about fifteen years after he pleaded 

guilty in 2005 to seek vacation of the conviction, Ye did not ultimately seek to

vacate his conviction under Washington law. Instead, in 2018, he sought 

withdrawal of his guilty plea under Padilla v. Kentucky, 559 U.S. 356 (2010), and 

Ye failed to articulate how Washington law affected his ability do so. 
3 

Accordingly, we deny this portion of the petition because the record supports that 

Ye is not entitled to equitable tolling, rendering his motion to reopen untimely.

2. Ye also argues that the IJ violated his due process rights by stating 

that he could not “ignore [the] reality that it is much easier to persuade a judge to 

vacate a conviction some thirteen years after the fact.” However, Ye does not 

clearly articulate how this comment violated his due process rights or establish that 

any prejudice arose from the comment. See Antonio-Cruz v. I.N.S., 147 F.3d 1129, 

1131 (9th Cir. 1998). We discern nothing from the IJ’s decision that suggests that 

the comment affected the IJ’s determination that Ye’s motion to reopen was 

untimely. Indeed, the comment was made in the context of the IJ’s denial of sua 

sponte reopening, not his denial of the motion to reopen. As discussed, the IJ did 

not abuse his discretion in denying the motion to reopen as untimely because the 

record amply supports that Ye failed to demonstrate entitlement to equitable 

tolling.

3. Finally, Ye contends that the BIA erred in upholding the IJ’s denial of 

sua sponte reopening. Our jurisdiction to review the denial of sua sponte 

reopening extends only “to instances where the agency misconstrues the 

parameters of its sua sponte authority based on legal or constitutional error and, as 

a consequence, does not truly exercise its discretion.” Lona, 958 F.3d at 1237 

(citation omitted). It is not “apparent on the face” of the decisions of the BIA or 
4 

the IJ that either misunderstood that the decision to grant sua sponte reopening 

under 8 C.F.R. § 1003.23(b)(1) is discretionary.

1

 See id. at 1234. We therefore 

lack jurisdiction to review the denial of sua sponte reopening and dismiss this 

portion of the petition.

PETITION DENIED IN PART AND DISMISSED IN PART.

1 The Department of Justice amended 8 C.F.R. § 1003.23(b)(1), and the 

amended version became effective on January 15, 2021. Appellate Procedures and 

Decisional Finality in Immigration Proceedings; Administrative Closure, 85 Fed. 

Reg. 81,588, 81588, 81,655 (Dec. 16, 2020). However, we apply the regulation as 

it existed “at the time of the BIA’s decision,” which was issued on May 26, 2020. 

See Rubalcaba v. Garland, No. 17-70845, 2021 WL 2214087, at *4 n.5 (9th Cir. 

June 2, 2021).