Ayrapetian v. Immigration & Naturalization Service
Ayrapetian v. Immigration & Naturalization Service
Opinion of the Court
MEMORANDUM
Petitioners Konstantin Ayrapetian and Sousan Malkhasian, husband and wife, and citizens of Armenia, seek review of the Board of Immigration Appeals’ (“BIA”) denial of their motion to reopen deportation proceedings to apply for adjustment of status based on their daughter’s United States citizenship. The BIA denied their motion on the basis of its untimeliness and declined to exercise its sua sponte power to reopen. This timely petition for review followed.
We need not, however, reach that issue here. Whether or not judicial review would be available in some circumstances, petitioners have not even alleged any “exceptional situation” explaining their failure to file a timely motion to reopen or their lengthy delay thereafter in failing to file their present motion. See In re J-J, 21 I. & N. Dec. 976. Instead, they point to reasons why they should prevail on their adjustment of status application, and why they will suffer hardship if they do not.
The power of the BIA to reopen cases sua sponte is limited; it “is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship.” In re J-J, 21 I. & N. Dec. 976; see also In re L-V-K-, Interim Decision (BIA) 3409, 1999 WL 607159 (BIA, Aug. 10, 1999); In re X-G-W-, Interim Decision (BIA) 3352, 1998 WL 378104 (BIA, June 25, 1998) (stating that the BIA retains limited discretionary power to reopen cases sua sponte in “unique situations where it would serve the interest of justice” and recognizing a significant change in the asylum law to be such a situation).
Petitioners have not alleged any “exceptional situation” that meets these standards; instead, they seek relief from the usual filing deadlines because “enforcing them might result in a hardship.” Any review authority we might have would be limited to applying the agency’s own “meaningful standard” as a benchmark
Accordingly, the petition for review is
DENIED.
Judge PREGERSON concurs in the result.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir. R. 36-3.
. Because deportation proceedings were commenced against petitioners prior to April 1, 1997, and the final order of deportation was entered after October 30, 1996, we have jurisdiction pursuant to 8 U.S.C. § 1105a, as amended by § 309(c)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. See Chand v. INS, 222 F.3d 1066, 1073 (9th Cir. 2000).
. The final administrative decision was rendered on June 5, 1997, and petitioners did not file their motion to reopen until June 28, 1999. Petitioners also concede that none of the exceptions to the 90-day rule applies to their case. See 8 C.F.R. § 3.2(c)(3).
. For similar reasons, Petitioners have also failed to present a factual basis for equitable tolling or equitable estoppel arguments.
Reference
- Full Case Name
- Konstantin AYRAPETIAN Sousan Malkhasian v. IMMIGRATION AND NATURALIZATION SERVICE
- Status
- Published