                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 26 2010

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




                             FOR THE NINTH CIRCUIT



ARSEN VARDANYAN,                                 No. 08-74953

               Petitioner,                       Agency No. A079-604-957

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

               Respondent.



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

                             Submitted October 19, 2010 **

Before:        O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.

       Arsen Vardanyan, a native and citizen of Armenia, petitions pro se for

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

reopen removal proceedings based on ineffective assistance of counsel. We have

jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial 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).
a motion to reopen. 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 Vardanyan’s motion to

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

September 2, 2004, order, see 8 C.F.R. § 1003.2(c)(2) (motion to reopen must

generally be filed within 90 days of the final order), and Vardanyan failed to

establish that he acted with the due diligence required for equitable tolling, see

Iturribarria, 321 F.3d at 897 (deadline can be equitably tolled “when a petitioner is

prevented from filing because of deception, fraud, or error, as long as the petitioner

acts with due diligence”).

      PETITION FOR REVIEW DENIED.




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