                                                                           FILED
                              NOT FOR PUBLICATION                           SEP 18 2012

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




                              FOR THE NINTH CIRCUIT



VICTOR MANUEL VARGAS-                             No. 10-73508
PLANCARTE,
                                                  Agency No. A093-178-451
               Petitioner,

  v.                                              MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted September 10, 2012 **

Before:        WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       Victor Manuel Vargas-Plancarte, 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. Reviewing de




          *
             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).
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 BIA properly concluded that Vargas-Plancarte was ineligible for

suspension of deportation at the time he pled guilty to a violation of California

Health & Safety Code § 11352. See 8 U.S.C. § 1254(a)(2) (repealed); cf. Lopez-

Castellanos v. Gonzales, 437 F.3d 848, 852-54 (9th Cir. 2006) (repeal of

suspension of deportation relief did not apply retroactively to alien where the

offense to which he pled guilty would not have rendered him ineligible for

suspension of deportation at the time of his guilty plea). In light of this

determination, the BIA did not err by declining to address whether Vargas-

Plancarte was entitled to equitable tolling of his untimely motion to reopen.

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

sponte authority to reopen proceedings under 8 C.F.R. § 1003.2(a). See Mejia-

Hernandez v. Holder, 633 F.3d 818, 823-24 (9th Cir. 2011).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                           2                                      10-73508
