                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 19 2011

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




                             FOR THE NINTH CIRCUIT



ALAMGIR AKOND,                                   No. 08-73108

               Petitioner,                       Agency No. A070-804-483

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

               Respondent.



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

                             Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       Alamgir Akond, a native and citizen of Bangladesh, petitions for review of

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

Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of




          *
             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).
discretion the denial of motions to reopen. Iturribarria v. INS, 321 F.3d 889, 894

(9th Cir. 2003). We dismiss in part and deny in part the petition for review.

      We lack jurisdiction to review Akond’s contention that the BIA should have

tolled the time limitation on his motion to reopen because the BIA failed to address

his prior motion to reopen filed in 2002. See Barron v. Ashcroft, 358 F.3d 674,

677-78 (9th Cir. 2004) (this court lacks jurisdiction to review contentions not

raised before the agency).

      The BIA did not abuse its discretion in denying Akond’s motion to reopen

as untimely because the motion was filed more than five years after the BIA’s

order dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2) (motion to

reopen generally must be filed within 90 days of the final order), and Akond failed

to establish he acted with the due diligence required for equitable tolling of that

deadline, see Iturribarria, 321 F.3d at 897 (a petitioner may obtain equitable

tolling based on ineffective assistance of counsel as long as “the petitioner acts

with due diligence in discovering the deception, fraud, or error”). Moreover, the

BIA did not abuse its discretion in finding that Akond failed to present material

evidence of changed circumstances in Bangladesh to qualify for the regulatory

exception to the time limit for filing motions to reopen. See 8 C.F.R.

§ 1003.2(c)(3)(ii); see also Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008)


                                           2                                      08-73108
(requiring movant to produce material evidence with motion to reopen that

conditions in country of nationality had changed).

      PETITION FOR REVIEW DISMISSED in part; DENIED in part.




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