                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 25 2010

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




                              FOR THE NINTH CIRCUIT



 VICTOR MANUEL SILVA-DIAZ,                        No. 07-71861

               Petitioner,                        Agency No. A097-973-401

   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.

        Victor Manuel Silva-Diaz, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s order denying his motion to reopen. Our jurisdiction



          *
             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).

NHY/Research
is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a

motion to reopen. Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003). We deny

in part and dismiss in part the petition for review.

       The BIA acted within its discretion in denying as untimely Silva-Diaz’s

motion to reopen because it was filed nine years after his deportation order became

final, see 8 C.F.R. § 1003.2(c)(2), and he did not show that he acted with the due

diligence required for equitable tolling, see Singh v. Gonzales, 491 F.3d 1090,

1096-97 (9th Cir. 2007).

       We lack jurisdiction to review the agency’s decision not to exercise its sua

sponte power. 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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