                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 24 2010

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




                              FOR THE NINTH CIRCUIT



 ISMAEL RAMIREZ-BERMUDEZ,                         No. 07-73538

               Petitioner,                        Agency No. A075-252-491

   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.

        Ismael Ramirez-Bermudez, 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. We have jurisdiction pursuant



          *
             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).

TL/Research
to 8 U.S.C. § 1252. We review for abuse of discretion the BIA’s denial of a

motion to reopen and review de novo constitutional claims. 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 Ramirez-Bermudez’s second

motion to reopen as time- and number-barred where he filed the motion over five

years after the final order of removal, see 8 U.S.C. § 1229a(c)(7)(C)(i), and failed

to establish the due diligence required for equitable tolling, see Iturribarria, 321

F.3d at 897.

       We lack jurisdiction to review Ramirez-Bermudez’s contention that the BIA

should have invoked its sua sponte authority to reopen his proceedings. 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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