                                                                           FILED
                              NOT FOR PUBLICATION                           SEP 24 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



EDGAR SAMUEL LARA-GARCIA,                         No. 10-73195

               Petitioner,                        Agency No. A072-307-959

  v.
                                                  MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted September 10, 2012 **

Before:        WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       Edgar Samuel Lara-Garcia, a native and citizen of Guatemala, petitions for

review of an order of the Board of Immigration Appeals (“BIA”) denying his

motion to reopen deportation proceedings. Our jurisdiction is governed by

8 U.S.C. § 1252. Reviewing for abuse of discretion the BIA’s denial of a motion


          *
             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).
to reopen, Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011) (citation omitted),

we deny in part and dismiss in part the petition for review.

      The BIA did not abuse its discretion by denying Lara-Garcia’s motion to

reopen as untimely because the motion was filed approximately 13 years after

issuance of the final administrative order, see 8 C.F.R. §§ 1003.2(c)(2), 1241.31,

and Lara-Garcia failed to demonstrate the due diligence necessary to warrant

equitable tolling of the filing deadline, where his motion did not state when he had

definitively learned of the alleged ineffective assistance of his former attorney, see

Avagyan, 646 F.3d at 679 (measuring the end of the tolling period from “when

petitioner definitively learns of the harm resulting from counsel’s deficiency”).

      We lack jurisdiction to review Lara-Garcia’s due process challenge to the

BIA’s decision to invoke the summary-affirmance procedure in its 2001 order,

because he failed to raise this contention in his motion to reopen before the BIA.

See Tijani v. Holder, 628 F.3d 1071, 1079 (9th Cir. 2010) (“We lack jurisdiction to

review legal claims not presented in an alien’s administrative proceedings before

the BIA.”).

      Finally, because our determination regarding the untimeliness of Lara-

Garcia’s motion to reopen is dispositive of his petition for review, we decline to

consider his assertion that he remains prima facie eligible for relief from removal.


                                           2                                    10-73195
See Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir. 2006) (declining to

reach nondispositive challenges to a BIA order).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                         3                                 10-73195
