                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 11 2010

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




                            FOR THE NINTH CIRCUIT



PEDRO ARENAS-CELAYA,                             No. 08-70250

              Petitioner,                        Agency No. A092-239-895

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

              Respondent.



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

                              Submitted May 25, 2010

Before:       CANBY, THOMAS, AND W. FLETCHER, Circuit Judges.

       Pedro Arenas-Celaya, a native and citizen of Mexico, petitions for review of

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

Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of

discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894


          *
             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).
(9th Cir. 2003), and de novo due process claims, Vasquez-Zavala v. Ashcroft, 324

F.3d 1105, 1107 (9th Cir. 2003). We deny in part and dismiss in part the petition

for review.

      The BIA did not abuse its discretion in denying Arenas-Celaya’s motion to

reopen because it was filed more than two years after the BIA’s May 19, 2005,

order dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2) (motion to

reopen generally must be filed within 90 days of the final order), and Arenas-

Celaya failed to establish grounds for equitable tolling, see Iturribarria, 321 F.3d

at 897 (equitable tolling available “when a petitioner is prevented from filing

because of deception, fraud, or error, as long as the petitioner acts with due

diligence”). It follows that Arenas-Celaya’s due process claim fails. See Lata v.

INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice for a

petitioner to prevail on a due process claim).

      To the extent Arenas-Celaya challenges the BIA’s October 27, 2003, order

dismissing his underlying appeal, we lack jurisdiction because the petition for

review is not timely as to that order. See 8 U.S.C. § 1252(b)(1); Singh v. INS, 315

F.3d 1186, 1188 (9th Cir. 2003).




                                           2                                      08-70250
      We lack jurisdiction to review the BIA’s decision not to invoke its sua

sponte authority to reopen proceedings under 8 C.F.R. § 1003.2(a). See Ekimian v.

INS, 303 F.3d 1153, 1159 (9th Cir. 2002).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                         3                                      08-70250
