                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 05 2011

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




                             FOR THE NINTH CIRCUIT



MICHAEL SANGLANG                                 No. 09-72605
RESURECCION, a.k.a. Michael
Sangalang Resurreccion,                          Agency No. A077-313-252

               Petitioner,
                                                 MEMORANDUM *
  v.

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted April 20, 2011 **

Before:        RYMER, THOMAS, and PAEZ, Circuit Judges.

       Michael Sanglang Resureccion, a native and citizen of the Philippines,

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

dismissing his appeal from an immigration judge’s decision denying his motion to


          *
             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).
reopen deportation proceedings conducted in absentia and denying his motion to

remand. We have jurisdiction 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 agency did not abuse its discretion in denying Resureccion’s motion to

reopen as untimely where he failed to show that he acted with the due diligence

required to warrant equitable tolling of the filing deadline. See 8 C.F.R.

§ 1003.23(b)(4)(iii)(A)(1) (motion to reopen must be filed within 180 days of

deportation order entered in absentia); Iturribarria, 321 F.3d at 897 (a petitioner

may obtain equitable tolling based on ineffective assistance of counsel as long as

he “act[ed] with due diligence in discovering the deception, fraud, or error”).

      Because the agency’s conclusion that Resureccion failed to act with due

diligence upon discovering that he had been ordered removed in absentia is

dispositive, it was unnecessary for the BIA to remand his case for consideration of

whether Resureccion’s second counsel provided him with ineffective assistance.

      In light of our disposition, we need not address whether Resureccion has

demonstrated sufficient compliance with Matter of Lozada, 19 I. & N. Dec. 637

(BIA 1988).

      PETITION FOR REVIEW DENIED.


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