                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 19 2010

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




                             FOR THE NINTH CIRCUIT



ROBERTO EUSEBIO MARTINEZ-                        Nos. 08-70820
PEREZ,                                                08-74315

               Petitioner,                       Agency No. A071-582-607

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

               Respondent.



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

                             Submitted June 29, 2010 **

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

       In these consolidated petitions for review, Roberto Eusebio Martinez-Perez,

a native and citizen of Guatemala, petitions for review of the Board of Immigration

Appeals’ (“BIA”) orders denying his motion to reopen and denying his subsequent

motion to reconsider. We have jurisdiction under 8 U.S.C. § 1252. We review for

          *
             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).
abuse of discretion the denial of a motion to reopen and reconsider, and review de

novo questions of law, including claims of due process violations due to ineffective

assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.

2005). We deny the petitions for review.

         The BIA did not abuse its discretion in denying Martinez-Perez’s motion to

reopen as untimely because it was filed almost two years after the BIA’s final order

of removal, see 8 C.F.R. § 1003.2(c)(2), and Martinez-Perez failed to establish

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

2003) (equitable tolling available to a petitioner who is prevented from filing due

to deception, fraud or error, and exercises due diligence in discovering such

circumstances); see also Hernandez v. Mukasey, 524 F.3d 1014, 1020 (9th Cir.

2008).

         Because the untimeliness of the motion to reopen is dispositive, we do not

reach Martinez-Perez’s remaining contentions relating to the merits of his

underlying ineffective assistance of counsel claim.

         The BIA also did not abuse its discretion in denying Martinez-Perez’s

motion to reopen based on changed country conditions because he failed to present

previously unavailable and material evidence of changed country conditions in




                                            2                                    08-70820
Guatemala. See 8 C.F.R. § 1003.2(c)(3)(ii); see also Konstantinova v. INS, 195

F.3d 528, 530 (9th Cir. 1999).

      The BIA did not abuse its discretion by denying Martinez-Perez’s motion to

reconsider because he failed to identify any error of fact or law in the BIA’s

January 28, 2008, decision. See 8 C.F.R. § 1003.2(b)(1).

      PETITIONS FOR REVIEW DENIED.




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