                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       MAY 18 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

CARLOS JAVIER MONTANEZ SOTO,                    No.    16-72080

                Petitioner,                     Agency No. A095-763-017

 v.
                                                MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                               Submitted May 15, 2018**


Before:      SILVERMAN, BEA, and WATFORD, Circuit Judges.

      Carlos Javier Montanez Soto, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s decision denying his motion to reopen removal proceedings.

We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
denial of a motion to reopen. Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088

(9th Cir. 2015). We deny the petition for review.

      The agency did not abuse its discretion in denying Montanez Soto’s motion

to reopen as untimely, where he conceded the motion was filed past the 90-day

filing deadline, see 8 C.F.R. § 1003.23(b)(1), and he provided no evidence of due

diligence for equitable tolling of the deadline, see Avagyan v. Holder, 646 F.3d

672, 679 (9th Cir. 2011) (equitable tolling is available to an alien who is prevented

from timely filing a motion to reopen due to deception, fraud, or error, as long as

the alien exercises due diligence in discovering such circumstances); Carrillo-

Gonzalez v. INS, 353 F.3d 1077, 1079 (9th Cir. 2003) (statements by counsel are

not evidence).

      In light of this disposition, we do not address Montanez Soto’s contentions

regarding compliance with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).

      PETITION FOR REVIEW DENIED.




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