                                                                            FILED
                             NOT FOR PUBLICATION                             JUN 10 2010

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




                             FOR THE NINTH CIRCUIT



TEODORO SUSANO-GARCIA,                           No. 08-70547

               Petitioner,                       Agency No. A078-000-217

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

               Respondent.



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

                             Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Teodoro Susano-Garcia, a native and citizen of Mexico, petitions pro se for

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

reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We

review for abuse of discretion the BIA’s denial of a motion to reopen, Iturribarria


          *
             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).
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 did not abuse its discretion in denying Susano-Garcia’s motion to

reopen as time- and number-barred because it was his second motion to reopen and

it was filed over two years after the BIA’s final order of removal, see 8 U.S.C.

§ 1229a(c)(7)(A)-(C) (motion to reopen normally limited to one, and must be filed

within 90 days of final administrative order of removal), and Susano-Garcia did

not show he was entitled to equitable tolling, see Iturribarria, 321 F.3d at 897 (due

diligence required for equitable tolling).

      Susano-Garcia’s contention that the BIA did not sufficiently address his

hardship evidence fails because the BIA’s time- and number-bar determination was

dispositive. See 8 U.S.C. § 1229a(c)(7).

      We lack jurisdiction to review the BIA’s sua sponte determination. See

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

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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