                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 14 2012

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




                             FOR THE NINTH CIRCUIT



FREDERIC MAZARIEGOS SANTOS,                      No. 10-71968

               Petitioner,                       Agency No. A078-073-859

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

               Respondent.



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

                             Submitted August 8, 2012 **

Before:        ALARCÓN, BERZON, and IKUTA, Circuit Judges.

       Frederic Mazariegos Santos, a native and citizen of Guatemala, 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 under

8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to


          *
             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).
reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny the

petition for review.

      The BIA did not abuse its discretion in denying Mazariegos Santos’s motion

to reopen as untimely where he filed the motion more than seven years after his

final order of removal, see 8 C.F.R. § 1003.2(c)(2) (motion to reopen must be filed

within 90 days of final order), and failed to show the due diligence required to

obtain equitable tolling of the filing deadline, see Iturribarria, 321 F.3d at 897

(equitable tolling is available where petitioner demonstrates due diligence in

discovering the deception, fraud, or error that prevented timely filing).

      Because the BIA’s untimeliness determination is dispositive, we do not

reach Mazariegos Santos’s contentions concerning the departure bar and the merits

of his ineffective assistance and due process claims.

      Contrary to Mazariegos Santos’s contention, the BIA did not abuse its

discretion by addressing the issue of changed country conditions where his motion

to reopen included a request for asylum, withholding of removal, and relief under

the Convention Against Torture, as well as evidence of recent economic

developments in Guatemala. See 8 C.F.R. § 1003.2(c)(3)(ii).

      Mazariegos Santos’s unopposed request for judicial notice is granted.

      PETITION FOR REVIEW DENIED.


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