                                                                           FILED
                           NOT FOR PUBLICATION                              APR 09 2010

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




                            FOR THE NINTH CIRCUIT

HELEODORO CARRION-PADILLA,                       Nos. 05-75735
                                                      06-74997
             Petitioner,
                                                 Agency No. A034-013-240
  v.

ERIC H. HOLDER JR., Attorney General,            MEMORANDUM *

             Respondent.



                      On Petitions for Review of Orders of the
                          Board of Immigration Appeals

                             Submitted April 5, 2010 **
                               Pasadena, California

Before: FERNANDEZ, SILVERMAN, and GRABER, Circuit Judges.

       Petitioner Heleodoro Carrion-Padilla appeals the Board of Immigration

Appeals’ ("BIA") denial of suspension of deportation and denial of his motion to

reopen the case. We dismiss in part and deny in part.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
      We lack jurisdiction to review a decision by the BIA denying an alien’s

application for suspension of deportation in the exercise of discretion. 8 U.S.C.

§ 1252(a)(2)(B)(i); see also Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th

Cir. 2009). We also lack jurisdiction to review the BIA’s decision not to act sua

sponte to reopen Petitioner’s case. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th

Cir. 2002) (holding that this court has no jurisdiction to review the BIA’s decision

not to invoke its sua sponte authority because that decision is committed to the

BIA’s unfettered discretion).

      However, we retain jurisdiction over constitutional claims. Martinez-Rosas

v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). Here, Petitioner fails to present a

colorable constitutional violation that would give this court jurisdiction to review

the denial of suspension of deportation. See id. (holding that a "petitioner must

allege at least a colorable constitutional violation").

      The BIA did not abuse its discretion in determining that equitable tolling

does not apply to Petitioner’s case. Petitioner failed to demonstrate that new,

material evidence came to light, 8 C.F.R. § 1003.2(c)(1); that fraud, deceit, error,

or ineffective assistance of counsel prevented him from filing a timely motion,

Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir. 1999); or that a government official




                                            2
gave Petitioner incorrect advice during the pendency of his petition, Socop-

Gonzalez v. INS, 272 F.3d 1176, 1187-89 (9th Cir. 2001) (en banc).

      DENIED in part; DISMISSED in part.




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