Summary Calendar BEN JIE LIN, also known as Bin-Jie Lin v. Michael Bmukasey, U Sattorney General

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should not be published and is not precedent except under the limited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

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No. 07-60350
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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 denial for
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, 260 F.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.

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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.

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