                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 21 2011

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




                             FOR THE NINTH CIRCUIT



RAFAEL PEREZ-AYALA,                              No. 09-70026

               Petitioner,                       Agency No. A075-765-068

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

               Respondent.



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

                             Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       Rafael Perez-Ayala, 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. We have jurisdiction under




          *
             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).
8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to

reopen. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny

the petition for review.

      The BIA did not abuse its discretion in denying Perez-Ayala’s motion to

reopen because it was filed almost five years after the BIA’s October 23, 2003,

order, see 8 C.F.R. § 1003.2(c)(2), and Perez-Ayala failed to demonstrate that he

acted with the due diligence required for equitable tolling, see Iturribarria v. INS,

321 F.3d 889, 899 (9th Cir. 2003) (equitable tolling available where “a petitioner is

prevented from filing because of deception, fraud, or error, as long as the petitioner

acts with due diligence”).

      PETITION FOR REVIEW DENIED.




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