Singh v. Gonzales

MEMORANDUM ** Karnail Singh, a native and citizen of India, petitions for review of an order of *726 the Board of Immigration Appeals (“BIA”) denying his motion to reopen removal proceedings in order to seek adjustment of status. To the extent we have jurisdiction, it is pursuant to 8 U.S.C. § 1252 . We dismiss the petition for review in part and deny it in part. We lack jurisdiction over Singh’s equitable tolling contention, as he did not exhaust this issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (holding that exhaustion is mandatory and jurisdictional). Reviewing for abuse of discretion, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), we conclude that the BIA properly applied the 90-day deadline contained in 8 C.F.R. § 1003.2 (c)(2) to deny Singh’s motion to reopen as untimely. In addition, we reject Singh’s contention that his due process rights were violated by the BIA’s decision. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (“To prevail on a due process challenge ... [a petitioner] must show error and substantial prejudice.”). PETITION FOR REVIEW DISMISSED in part; DENIED in part. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.