                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 12 2010

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




                             FOR THE NINTH CIRCUIT



DANIEL OROCIO,                                   No. 08-71150

               Petitioner,                       Agency No. A075-708-985

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

               Respondent.



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

                             Submitted June 29, 2010 **

Before:        ALARCÓN, LEAVY, and GRABER, Circuit Judges.

       Daniel Orocio, a native and citizen of Mexico, petitions pro se for review of

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

based on ineffective assistance of counsel. Our jurisdiction is governed by 8

U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen


          *
             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).
and de novo allegations of due process violations in immigration proceedings.

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 Orocio’s motion to reopen

because it was filed more than two years after the BIA’s October 18, 2005, order

dismissing his 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 Orocio failed to establish

grounds for equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.

2003) (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 Orocio’s due process claim fails. See Lata v. INS, 204

F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process claim).

      We lack jurisdiction to review the BIA’s decision not to invoke its sua

sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159

(9th Cir. 2002).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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