                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 24 2011

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




                             FOR THE NINTH CIRCUIT



GURINDER SINGH,                                   No. 08-71417

               Petitioner,                        Agency No. A075-248-076

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

               Respondent.



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

                             Submitted January 10, 2011 **

Before:        BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.

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

Board of Immigration Appeals’ (“BIA”) order denying his second motion to

rescind his in absentia removal order. Our jurisdiction is governed by

8 U.S.C. § 1252. We review for abuse of discretion the denial of a 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, and review de novo questions of law. Mohammed v. Gonzales, 400 F.3d

785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition for

review.

      The agency did not abuse its discretion in denying Singh’s motion as

number-barred, see 8 C.F.R. § 1003.23(b)(4)(ii), and Singh failed to demonstrate

that he acted with the due diligence required for equitable tolling, see Iturribarria

v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (equitable tolling available “when a

petitioner is prevented from filing because of deception, fraud, or error, as long as

the petitioner acts with due diligence”).

      Singh’s contention that 8 C.F.R. § 1003.23(b)(4)(ii) is unconstitutional is

unavailing.

      To the extent Singh challenges the immigration judge’s June 11, 1998,

decision, we lack jurisdiction because Singh did not appeal from that decision to

the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

      Singh’s remaining contentions are unavailing.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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