                                                                           FILED
                                NOT FOR PUBLICATION                         DEC 28 2009

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




                                FOR THE NINTH CIRCUIT



 OSCAR NOEL MENJIVAR                                No. 07-72642
 GUARDADO,
                                                    Agency No. A075-526-638
                 Petitioner,

   v.                                               MEMORANDUM *

 ERIC H. HOLDER Jr., Attorney General,

                 Respondent.



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

                               Submitted December 15, 2009 **

Before:          GOODWIN, WALLACE, and FISHER, Circuit Judges.

        Oscar Noel Menjivar Guardado, a native and citizen of El Salvador, petitions

for review of the Board of Immigration Apppeals’ (“BIA”) order denying his

motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C.

            *
             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).

/Research
§ 1252. Reviewing for abuse of discretion, Iturribarria v. INS, 321 F.3d 889, 894

(9th Cir. 2003), we deny the petition for review.

        The BIA did not abuse its discretion in denying Menjivar Guardado’s

motion to reopen because the motion was filed more than 3 years after the BIA’s

June 30, 2003, order dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2),

and Menjivar Guardado failed to demonstrate that he acted with the due diligence

required for equitable tolling, see Iturribarria, 321 F.3d at 897 (equitable tolling is

available “when a petitioner is prevented from filing because of deception, fraud,

or error, as long as the petitioner acts with due diligence”).

        In light of this disposition, we do not consider Menjivar Guardado’s

remaining contentions.

        PETITION FOR REVIEW DENIED.




/Research                                  2                                     07-72642
