                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 26 2010

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




                             FOR THE NINTH CIRCUIT



FENGLIN DUAN,                                    No. 08-73671

               Petitioner,                       Agency No. A099-398-691

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

               Respondent.



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

                             Submitted October 19, 2010 **

Before:        O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.

       Fenglin Duan, a native and citizen of China, petitions for review of the

Board of Immigration Appeals’ (“BIA”) decision 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 concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
discretion the denial of a motion to reopen, Mohammed v. Gonzales, 400 F.3d 785,

791 (9th Cir. 2005), and we dismiss in part and deny in part the petition for review.

      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 Ekimian v.

INS, 303 F.3d 1153, 1159 (9th Cir. 2002).

      The BIA did not abuse its discretion in denying Duan’s February 14, 2008,

motion to reopen as untimely because it was filed more than a year after the BIA’s

final order of removal, see 8 C.F.R. § 1003.2(c)(2), and Duan did not show he was

entitled to equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.

2003) (deadline for filing motion to reopen can be equitably tolled “when

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

the petitioner acts with due diligence”).

      PETITION FOR REVIEW DISMISSED in part; DENIED in part.




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