Moises QUINONEZ-RODAS, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent, 247 F. App'x 943

MEMORANDUM Moises Quinonez-Rodas petitions for review of the decision of the Board of Immigration Appeals (BIA) upholding the denial of his motion to reopen to rescind his prior in absentia deportation order and to adjust his status. We deny the petition. Petitioner did not argue to the immigration judge (IJ) or the BIA that the IJ erred under In re M-S-, 22 I. & N. Dec. 349 (BIA 1998) (en banc), and applied the wrong standard in evaluating petitioner’s motion to reopen. Therefore, we lack jurisdiction to consider such an argument. Garcia-Ramirez v. Gonzales, 423 F.3d 935, 938 (9th Cir.2005).

We note that petitioner’s motion is untimely because it was filed more than seven years after the in absentia deportation order was entered. 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1) (motion to rescind must be filed within 180 days from the date of the in absentia deportation order if the alien wishes to demonstrate that his failure to appear was because of “exceptional circumstances”).

Even if Petitioner had raised the argument that the IJ should have deemed petitioner’s adjustment of status request to be a separate motion to reopen and should have reviewed it under a different standard, such a motion would have been untimely. 8 C.F.R. § 1003.23(b)(1) (motion to reopen for adjustment of status must be filed within 90 days of the date the final administrative order of deportation was entered, or on or before September 30, 1996, whichever is later).

Petitioner has failed to allege fraud or misconduct to the agency or to this court sufficient to entitle him to equitable tolling of either of these filing deadlines. See Fajardo v. INS, 300 F.3d 1018, 1020-22 (9th Cir.2002). Nor has petitioner advanced any other argument that would excuse his failure to comply with the time requirements set forth in the regulations. See In re M-S-, 22 I. & N. Dec. at 353-55. Given this fact, we cannot say the BIA abused its discretion in denying his motion. PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.