                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 16 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


GILDARDO ROBLES,                                 No. 11-71284

               Petitioner,                       Agency No. A092-548-772

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

               Respondent.


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

                             Submitted January 15, 2013**

Before:        SILVERMAN, BEA, and NGUYEN, Circuit Judges.

       Gildardo Robles, a native and citizen of Mexico, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s denial of 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


          *
             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).
reopen, Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005), and review de

novo constitutional claims and questions of law, Khan v. Holder, 584 F.3d 773,

776 (9th Cir. 2009). We deny in part and dismiss in part the petition for review.

      The BIA did not abuse its discretion in denying the motion as untimely,

where the motion was filed four years after the deadline to seek relief under former

§ 212(c) of the Immigration and Nationality Act, see 8 C.F.R. § 1003.44(h) (the

deadline to file a special motion to seek section 212(c) relief is April 26, 2005),

and more than 90 days after the final order of removal, see 8 C.F.R.

§ 1003.23(b)(1). Robles’s due process contentions are therefore unavailing. See

Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (an alien must show error and

prejudice to prevail on a due process claim).

      To the extent Robles contends that the April 26, 2005, deadline for filing

special motions to reopen should be equitably tolled, we lack jurisdiction over this

unexhausted contention. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir.

2010).

      We also lack jurisdiction to review the BIA’s decision not to exercise its

discretionary authority to grant sua sponte reopening. See Mejia-Hernandez v.

Holder, 633 F.3d 818, 823-824 (9th Cir. 2011).




                                           2                                    11-71284
      Roble’s equal protection challenge is unavailing. See Dillingham v. INS,

267 F.3d 996, 1007 (9th Cir. 2001) (“In order to succeed on his [equal protection]

challenge, the petitioner must establish that his treatment differed from that of

similarly situated persons.”), overruled on other grounds by Nunez-Reyes v.

Holder, 646 F.3d 684 (9th Cir. 2011).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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