                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 21 2010

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




                             FOR THE NINTH CIRCUIT



 JOSE RICARDO PEREZ,                              No. 07-73070

               Petitioner,                        Agency No. A070-733-412

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

               Respondent.



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

                             Submitted January 11, 2010 **

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Jose Ricardo Perez, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen.

Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

LR/Research
discretion the denial of a motion to reopen and de novo claims of constitutional

violations in immigration proceedings, Singh v. Gonzales, 491 F.3d 1090, 1095

(9th Cir. 2007), and we deny in part and dismiss in part the petition for review.

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

reopen because it was filed more than four years after the BIA’s final removal

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

due diligence required for equitable tolling, see Singh, 491 F.3d at 1096-97. The

denial of Perez’s motion to reopen did not violate due process. See Lata v. INS,

204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error for a due process violation).

       We lack jurisdiction to review the BIA’s December 20, 2002, order denying

Perez’s motion to remand because he failed to timely petition for review of that

order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir. 2003).

       We lack jurisdiction to review the BIA’s decision not to invoke its sua

sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159

(9th Cir. 2002).

       Perez’s remaining contentions are unavailing.

       PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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