                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 15 2012

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




                             FOR THE NINTH CIRCUIT



ELMER GUSTAVO KISTE,                             No. 10-72745

               Petitioner,                       Agency No. A070-812-554

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

               Respondent.



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

                             Submitted August 8, 2012 **

Before:        ALARCÓN, BERZON, and IKUTA, Circuit Judges.

       Elmer Gustavo Kiste, a native and citizen of Guatemala, petitions for review

of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s order denying his motion to reopen deportation proceedings

conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review


          *
             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).
for abuse of discretion the denial of a motion to reopen, Avagyan v. Holder, 646

F.3d 672, 674 (9th Cir. 2011), and we deny the petition for review.

      The agency did not abuse its discretion in denying Kiste’s motion to reopen

as untimely where it was filed nearly twelve years after his order of removal, see 8

C.F.R. § 1003.23(b)(4)(iii)(A)(i) (an alien seeking to reopen and rescind an in

absentia deportation order based on exceptional circumstances must file the motion

within 180 days), and Kiste failed to establish that he qualified for equitable tolling

of the filing deadline, see Avagyan, 646 F.3d at 678-80 (equitable tolling is

available to a petitioner who establishes that he suffered from deception, fraud or

error, and exercised due diligence in discovering such circumstances).

      PETITION FOR REVIEW DENIED.




                                           2                                     10-72745
