                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 20 2011

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




                             FOR THE NINTH CIRCUIT



YOGESH KUMAR,                                    No. 08-71611

               Petitioner,                       Agency No. A077-172-366

  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.

       Yogesh Kumar, a native and citizen of India, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen

removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review

for abuse of discretion the denial of a motion to reopen, and de novo questions of


          *
             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).
law, including claims of ineffective assistance of counsel, 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 Kumar’s motion to reopen

as untimely where the motion was filed eleven months after the BIA’s final

decision. See 8 C.F.R. § 1003.2(c)(2). Kumar failed to show that he acted with the

due diligence required for equitable tolling, see Iturribarria v. INS, 321 F.3d 889,

897 (9th Cir. 2003) (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”), and he also failed to present sufficient evidence of

changed circumstances in India to qualify for an exception to the time limits, see 8

C.F.R. § 1003.2(c)(3)(ii); see also Toufighi v. Mukasey, 538 F.3d 988, 996 (9th

Cir. 2008) (requiring movant to produce material evidence with motion to reopen

that conditions in country of nationality had changed).

      To the extent Kumar challenges the BIA’s underlying decision dismissing

his appeal from an immigration judge’s denial of his asylum, withholding of

removal, and Convention Against Torture claims, we lack jurisdiction because this

petition is not timely as to that decision. See Stone v. INS, 514 U.S. 386, 504

(1995).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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