* 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should not be published and is not precedent except under the limited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. 07-60350

Summary Calendar

BEN JIE LIN, also known as Bin-Jie Lin

Petitioner

v.

MICHAEL B MUKASEY, U S ATTORNEY GENERAL 

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A72 780 871

Before REAVLEY, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Ben Jie Lin, a native and citizen of China, filed a petition to review the

Board of Immigration Appeals’ (BIA) order denying his untimely motion to

reopen removal proceedings. 

Lin contends that the time limitations in 8 C.F.R. § 1003.2(c)(2) should

have been equitably tolled based on ineffective assistance of counsel. Because

equitable tolling is not a basis for filing an untimely or numerically-barred

motion under the statute or regulations, this argument is in essence an

United States Court of Appeals

Fifth Circuit

F I L E D

July 11, 2008

Charles R. Fulbruge III

Clerk
No. 07-60350

2

argument that the BIA should have exercised its discretion to reopen the

proceeding sua sponte based upon the doctrine of equitable tolling. In

Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir. 2004), we

concluded that there is no meaningful standard by which to review an

immigration judge’s discretionary decision not to exercise his or her sua sponte

authority to reopen a deportation proceeding where the motion to reopen was

untimely. Therefore, we lack jurisdiction to consider whether the BIA should

have sua sponte reopened Lin’s removal proceedings based on ineffective

assistance of counsel. Regardless, Lin has not shown that he is entitled to

equitable tolling because he has failed to establish ineffective assistance of

counsel under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10

(1st Cir. 1988) and has not shown that he acted with due diligence in presenting

his ineffective assistance of counsel claim. 

Lin’s argument that his counsel's ineffective assistance, as well as the

BIA’s failure to provide him directly with notice of its October 2000 decision,

violates his constitutional due process rights is unavailing because the denialfor

discretionary relief does not amount to a deprivation of a liberty interest. See

Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550 (5th Cir. 2006). Therefore, Lin

cannot establish a due process violation. Id.

Lin’s argument that the Government should be equitably estopped from

applying the 90 day time bar against him is also unavailing. Because Lin raises

this claim for the first time in his petition for review, the claim is unexhausted

and this court lacks jurisdiction to review it. See 8 U.S.C. § 1252(d); Wang v.

Ashcroft, 260F.3d 448, 452-53 (5th Cir. 2001) (citing Goonsuwan v. Ashcroft, 252

F.3d 383, 388-89 (5th Cir. 2001)). 

This court also lacks jurisdiction to review the BIA’s decision not to

exercise its sua sponte authority to reopen the proceedings based on Lin’s claim

that he and his wife were subjected to China’s coercive family planning policies.

See Enriquez-Alvarado, 371 F.3d at 249-50.
No. 07-60350

3

Finally, Lin does not address the BIA’s conclusion that, pursuant to In re

Castro-Padron, 21 I. & N. Dec. at 380, the BIA generally lacks jurisdiction to

consider his claim that the motion to reopen should be granted because of his

pending derivative adjustment application. Accordingly, he has waived any

challenge to this issue. See Soadjede v. Ashcroft, 324 F.3d 830, 838 (5th Cir.

2003) (failure to brief basis of BIA decision amounts to abandonment of

challenge to that basis). 

PETITION DISMISSED.