                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-2324




EDWIN PERDOMO,

                                                          Petitioner,

          versus


JOHN ASHCROFT, Attorney General,

                                                          Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals. (A-74-294-472)


Submitted:   September 29, 2004           Decided:   October 26, 2004


Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Paul S. Haar, Pauline M. Schwartz, LAW OFFICES OF PAUL S. HAAR,
Washington, D.C., for Petitioner.    Peter D. Keisler, Assistant
Attorney General, Donald E. Keener, Deputy Director, Greg D. Mack,
Senior Litigation Counsel, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

               Edwin Perdomo, a native and citizen of El Salvador,

petitions for review of an order of the Board of Immigration

Appeals (Board) sustaining an appeal by the Department of Homeland

Security and vacating a decision of the immigration judge that

granted a motion to reopen a final order of deportation in absentia

and granted Perdomo’s request for adjustment of status.             The Board

reinstated the 1996 in absentia order of deportation.                   We have

jurisdiction under 8 U.S.C. § 1105a(a) (1994),* and we deny the

petition for review.

               We conclude that the Board did not abuse its discretion

in denying the untimely motion to reopen for rescission of the in

absentia order of deportation.           The record reveals that Perdomo

received actual notice of the hearing and did not timely move to

reopen in accordance with 8 U.S.C. § 1252b(c)(3)(A) (1994).                 The

Board    did    not   abuse   its   discretion   in   holding   that,   without

deciding whether the time limit set forth in § 1252(c)(3)(A) is

subject to equitable tolling, Perdomo did not establish the due

diligence necessary to invoke such an exception. See Scorteneau v.




     *
      While 8 U.S.C. §§ 1105a, 1252b were repealed by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Pub.
L. No. 104-128, 110 Stat. 3009 (IIRIRA), effective April 1, 1997,
because a final order of deportation was issued in this case before
the effective date of the IIRIRA, these pre-IIRIRA provisions of
the INA are applicable. See IIRIRA § 309(a), (c).

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INS, 339 F.3d 407, 413-14 (6th Cir. 2003); Jobe v. INS, 238 F.3d

96, 100, 101 (1st Cir. 2001) (en banc).

          Accordingly,   we   deny   the   petition   for   review.   We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

                                                        PETITION DENIED




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