Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion *

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60086

Summary Calendar

MUHAMMAD SARFRAZ KHAN

Petitioner

v.

ERIC H HOLDER, JR, U S ATTORNEY GENERAL

Respondent

Petition for Review of Orders of the

Board of Immigration Appeals

BIA No. A79 008 104

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Petitioner Muhammad Sarfraz Khan, a native and citizen of Pakistan,

petitions for review of the order of the Board of Immigration Appeals (BIA)

denying his motion to reopen his removal proceeding. Khan also petitions for

review of the BIA’s order denying his motion to reconsider its denial of his

motion to reopen.

United States Court of Appeals

Fifth Circuit

F I L E D

February 20, 2009

Charles R. Fulbruge III

Clerk
No. 08-60086

2

An immigration judge (IJ) ordered Khan removed after he conceded

removability. The BIA affirmed that order in August 2005 and denied Khan’s

motion for reconsideration in October 2005. We dismissed Khan’s petition for

review as untimely, denied his petition for review of the BIA’s decision not to

reconsider its order, and denied his motion to stay removal. See Khan v.

Gonzales, 243 F. App’x 24 (5th Cir. 2007).

In August 2007, more than two years after the BIA denied him relief,

Kahn filed a motion with the BIA to reopen his removal proceeding. He

conceded untimeliness but asserted that he had become eligible for derivative

adjustment of status after the BIA had rendered its decision. He later

supplemented his motion to reopen by alleging that his prior counsel had been

ineffective and that he was entitled to remedy that ineffectiveness by having his

removal proceeding reopened. The BIA denied the motion to reopen as untimely

for having been filed more than 90 days after its prior order denying Khan relief.

It also rejected Khan’s claim of ineffective assistance of counsel as being

unsupported by the evidence. Additionally, it declined to reopen his case sua

sponte. Khan moved for reconsideration, but that motion was denied.

Khan contends that his removal proceeding should have been reopened

despite the untimeliness of his motion. He asserts that reopening is warranted

because a change in his wife’s immigration status presented a new opportunity

for him to adjust his status and avert removal and because his prior counsel’s

ineffectiveness left Khan ignorant of his rights and rendered his motion to

reopen untimely.

Khan’s attempt to demonstrate that exceptional circumstances existed

within the meaning of 8 C.F.R. § 1003.23(b)(4)(ii) fails because he did not satisfy

that subsection’s conjunctive requirement that the motion to reopen be filed

within 180 days after the removal order. § 1003.23(b)(4)(ii); see also 8 C.F.R.

§ 1003.2 (providing that the section’s 90-day period for filing a motion to reopen

removal proceedings in the BIA does not apply to motions brought pursuant to
No. 08-60086

3

§ 1003.23(b)(4)(ii)). A district court need not address the issue of exceptional

circumstances if the motion to do so is not filed within the time allowed by law.

Because of Khan’s dilatoriness, reopening depended entirely on a sua

sponte motion by either the BIA or the IJ. See Ramos-Bonilla v. Mukasey, 543

F.3d 216, 220 (5th Cir. 2008) (stating that “a request for equitable tolling of a

time- or number-barred motion to reopen on the basis of ineffective assistance

of counsel is” essentially a contention that the BIA, or the IJ, should have sua

sponte reopened the proceeding based upon the doctrine of equitable tolling). As

the provision for sua sponte reopening vests the BIA with complete discretion to

deny untimely motions to reopen, this court “has no legal standard by which to

judge the . . . ruling, and therefore . . . lacks jurisdiction.” Id. at 220; § 1003.2(a).

Khan’s petition for review of the order of removal is DISMISSED, and his

petition to review the order denying reconsideration of his motion to reopen is

DENIED. See Brinkmann v. Dallas Cty. Deputy Sherriff Abner, 813 F.2d 744,

748 (5th Cir. 1987) (stating that the failure to brief issues adequately is

equivalent to not having appealed).