FILED
NOT FOR PUBLICATION JUL 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DANIEL OROCIO, No. 08-71150
Petitioner, Agency No. A075-708-985
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 29, 2010 **
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Daniel Orocio, a native and citizen of Mexico, petitions pro se for review of
the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
based on ineffective assistance of counsel. Our jurisdiction is governed by 8
U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and de novo allegations of due process violations in immigration proceedings.
Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part
and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Orocio’s motion to reopen
because it was filed more than two years after the BIA’s October 18, 2005, order
dismissing his appeal, see 8 C.F.R. § 1003.2(c)(2) (motion to reopen generally
must be filed within 90 days of the final order), and Orocio failed to establish
grounds for equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.
2003) (equitable tolling available “when a petitioner is prevented from filing
because of deception, fraud, or error, as long as the petitioner acts with due
diligence”). It follows that Orocio’s due process claim fails. See Lata v. INS, 204
F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process claim).
We lack jurisdiction to review the BIA’s decision not to invoke its sua
sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159
(9th Cir. 2002).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 08-71150