                                                                          FILED
                              NOT FOR PUBLICATION                          NOV 30 2009

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




                              FOR THE NINTH CIRCUIT



 SERAFIN TINOCO-GARIBAY,                          No. 07-70185

               Petitioner,                        Agency No. A044-544-620

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

               Respondent.



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

                             Submitted November 17, 2009 **

Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Serafin Tinoco-Garibay, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen

based on ineffective assistance of counsel. Our jurisdiction is governed by



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

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8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of

discretion. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny in part

and dismiss in part the petition for review.

       The BIA did not abuse its discretion in denying Tinoco-Garibay’s motion to

reopen as untimely because it was filed more than two years after the BIA’s final

order, see 8 C.F.R. § 1003.2(c)(1), and he failed to present evidence that he

exercised diligence in discovering his prior attorney’s errors, see id. at 897

(equitable tolling is available to a petitioner who establishes deception, fraud, or

error, and exercised due diligence in discovering such circumstances).

       We lack jurisdiction to consider Tinoco-Garibay’s contentions regarding the

BIA’s March 23, 2004 order, because this petition for review is not timely as to

that order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir. 2003).

       PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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