                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                       FILED
                              FOR THE NINTH CIRCUIT                         FEB 26 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

 FLAVIO ESCOBEDO GOMEZ,                           No. 07-73368

               Petitioner,                        Agency No. A079-264-217

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

               Respondent.



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

                             Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Flavio Escobedo Gomez, a native and citizen of Mexico, petitions 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 8 U.S.C.



          *
             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).

JTK/Research
§ 1252. We review for abuse of discretion the denial of a motion to reopen,

Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we review de novo due

process claims, Ram v. INS, 243 F.3d 510, 516 (9th Cir. 2001). We deny the

petition for review.

       The BIA did not abuse its discretion in denying Escobedo Gomez’s second

motion to reopen as untimely and numerically barred because it was filed over a

year after the BIA’s August 2, 2005, final order, see 8 C.F.R. § 1003.2(c)(2), and

equitable tolling is unavailable to Escobedo Gomez where he did not establish

prejudice from the alleged ineffective assistance of counsel, see Iturribarria, 321

F.3d at 897, 899; see also Lara Torres v. Ashcroft, 383 F.3d 968, 973 (9th Cir.

2004), amended by 404 F.3d 1105 (9th Cir. 2005) (order) (counsel’s “unfortunate

immigration-law advice” was not ineffective assistance because it did not “pertain

to the actual substance of the hearing” or “call the hearing’s fairness into

question”).

       PETITION FOR REVIEW DENIED.




JTK/Research                               2                                   07-73368
