                                                                            FILED
                             NOT FOR PUBLICATION                             FEB 23 2010

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




                              FOR THE NINTH CIRCUIT



 XIU ZHEN CHEN,                                   No. 07-72030

               Petitioner,                        Agency No. A079-419-651

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

               Respondent.



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

                             Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Xiu Zhen Chen, a native and citizen of China, petitions for review of the

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

jurisdiction is governed by 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 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).

LR/Research
denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.

2003), and we deny in part and dismiss in part the petition for review.

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

reopen because it was filed more than 90 days after the BIA’s final removal order,

see 8 C.F.R. § 1003.2(c)(2), and Chen did not show she was entitled to equitable

tolling, see Iturribarria, 321 F.3d at 897 (deadline for filing a motion to reopen can

be equitably tolled where a petitioner acts with due diligence).

       We lack jurisdiction to review the agency’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).

       We lack jurisdiction to review Chen’s ineffective assistance of counsel claim

against current counsel because she failed to raise it before the BIA. See Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) .

       PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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