                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 10 2011

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




                              FOR THE NINTH CIRCUIT



AUGUSTO BRIGIDO SAAVEDRA                          No. 08-74614
CALDERON,
                                                  Agency No. A070-784-023
               Petitioner,

  v.                                              MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       Augusto Brigido Saavedra Calderon, a native and citizen of Peru, petitions

for review of the Board of Immigration Appeals’ (“BIA”) order denying his

motion to reopen based on ineffective assistance of counsel. We have jurisdiction

          *
             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).
under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to

reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny the

petition for review.

       The BIA did not abuse its discretion by denying Saavedra Calderon’s motion

to reopen because the motion was filed more than five years after the BIA’s

September 5, 2002, order dismissing the underlying appeal, see 8 C.F.R.

§ 1003.2(c)(2), and Saavedra Calderon failed to demonstrate that he acted with the

due diligence required to warrant equitable tolling, see Iturribarria, 321 F.3d at

897.

       PETITION FOR REVIEW DENIED.




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