                                                                             FILED
                             NOT FOR PUBLICATION                              FEB 26 2010

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




                              FOR THE NINTH CIRCUIT



 AVTAR SINGH,                                     No. 06-72360

               Petitioner,                        Agency No. A077-424-839

   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.

        Avtar Singh, a native and citizen of India, petitions for review of the Board

of Immigration Appeals’ order denying his motion to reopen based on ineffective

assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We



          *
             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).

KY/Research
review for abuse of discretion the denial of a motion to reopen, and de novo

questions of law, including claims of ineffective assistance of counsel, Mohammed

v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005), we deny the petition for review.

       The BIA acted within its discretion in denying as untimely Singh’s motion

to reopen because it was filed more than 90 days after the BIA’s final removal

order, see 8 C.F.R. § 1003.2(c)(2), and Singh did not show that he acted with the

due diligence required for equitable tolling, see Singh v. Gonzales, 491 F.3d 1090,

1096-97 (9th Cir. 2007).

       Singh’s contention that an immigration consultant provided him with

ineffective assistance of counsel is foreclosed by Hernandez v. Mukasey, 524 F.3d

1014, 1015-16 (9th Cir. 2008) (holding that “knowing reliance upon the advice of a

non-attorney cannot support a claim for ineffective assistance of counsel in a

removal proceeding.”).

       Singh’s remaining contention is unpersuasive.

       PETITION FOR REVIEW DENIED.




KY/Research                               2                                      06-72360
