                                                                           FILED
                              NOT FOR PUBLICATION                           SEP 29 2010

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




                              FOR THE NINTH CIRCUIT



JOSE ALBERTO RAMIREZ BENITEZ,                     No. 09-73240

               Petitioner,                        Agency No. A027-702-700

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

               Respondent.



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

                             Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Jose Alberto Ramirez Benitez, a native and citizen of El Salvador, petitions

pro se for review of the Board of Immigration Appeals’ order dismissing his appeal

from an immigration judge’s decision denying his motion to reopen removal

proceedings conducted in absentia. Our jurisdiction is governed by 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).
§ 1252. We review for abuse of discretion the denial of a motion to reopen,

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

dismiss in part the petition for review.

      The agency did not abuse its discretion in denying Ramirez Benitez’s motion

to reopen as untimely where Ramirez Benitez filed the motion almost six years

after the in absentia order, see 8 C.F.R. § 1003.23(b)(4)(ii), and Ramirez Benitez

did not establish that he was entitled to equitable tolling of the 180-day deadline,

see Iturribarria, 321 F.3d at 897 (equitable tolling available to a petitioner who is

prevented from filing due to deception, fraud or error, and exercises due diligence

in discovering such circumstances).

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

sponte authority to reopen 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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