FILED
NOT FOR PUBLICATION MAR 29 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDWIN GIOVANNI RIVAS BOLVITO, No. 09-70555
Petitioner, Agency No. A076-858-638
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2011 **
Before: FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.
Edwin Giovanni Rivas Bolvito, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s decision denying his motion to reconsider.
We have jurisdiction under 8 U.S.C. § 1252. Reviewing for an abuse of discretion,
*
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).
Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), we deny the petition for
review.
The BIA properly construed Bolvito’s October 10, 2008, filing as a motion
to reopen. Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005). The
agency did not abuse its discretion in denying Bolvito’s third motion to reopen as
untimely because he filed the motion more than nine years after his removal order
was entered, see 8 C.F.R. § 1003.23(b)(4)(ii) (motion to reopen must be filed
within 180 days of removal order entered in absentia), and Bolvito failed to show
that he acted with the due diligence required to warrant equitable tolling of the
filing deadline, Iturribarria, 321 F.3d at 897 (a petitioner may obtain equitable
tolling based on ineffective assistance of counsel as long as he “act[ed] with due
diligence in discovering the deception, fraud, or error”).
PETITION FOR REVIEW DENIED.
2 09-70555