                                                                           FILED
                             NOT FOR PUBLICATION                           FEB 27 2015

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



                              FOR THE NINTH CIRCUIT


LEE KYUNG-SAE,                                   No. 13-72173

               Petitioner,                       Agency No. A078-508-177

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

               Respondent.


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

                             Submitted February 17, 2015**

Before:        O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.

       Lee Kyung-Sae, a native and citizen of China, petitions for review of the

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

immigration judge’s (“IJ”) order denying his motion to reopen removal

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


          *
             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).
We review for abuse of discretion the denial of a motion to reopen and review de

novo constitutional claims. 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 dismissing Kyung-Sae’s appeal of

the IJ’s order denying his motion to reopen as untimely, where he filed the motion

more than nine years after his in absentia order of removal became final, see 8

C.F.R. § 1003.23(b)(1), (4)(ii), and he has not established the due diligence

required for equitable tolling of the filing deadline, see Avagyan v. Holder, 646

F.3d 672, 679-80 (9th Cir. 2011) (equitable tolling is available to an alien who is

prevented from timely filing a motion to reopen due to deception, fraud or error, as

long as petitioner exercises due diligence in discovering such circumstances).

      It follows that Kyung-Sae’s due process claim fails. See Lata v. INS, 204

F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process challenge, an alien

must show error and prejudice).

      To the extent Kyung-Sae contends the BIA erred in declining to invoke its

sua sponte authority to reopen proceedings, we lack jurisdiction to consider that

claim. See Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24 (9th Cir. 2011) (this

court lacks jurisdiction to review the BIA’s sua sponte determination).




                                          2                                     13-72173
      In light of our disposition, we do not reach Kyung-Sae’s remaining

contentions.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                        3                                  13-72173
