                                                                           FILED
                              NOT FOR PUBLICATION                           NOV 16 2012

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




                              FOR THE NINTH CIRCUIT



MANUEL DE JESUS MATZAR NIX,                       No. 10-71565

               Petitioner,                        Agency No. A070-818-961

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

               Respondent.



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

                             Submitted November 13, 2012 **

Before:        CANBY, TROTT, and W. FLETCHER, Circuit Judges.

       Manuel De Jesus Matzar Nix, a native and citizen of Guatemala, petitions

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

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

1252. We review for abuse of discretion the denial of a motion to reopen, Toufighi


          *
             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).
v. Mukasey, 538 F.3d 988, 992 (9th Cir. 2008), and we deny the petition for

review.

      The BIA did not abuse its discretion in denying Nix’s motion to reopen as

untimely where the motion was filed over twelve years after the agency’s final

order, see 8 C.F.R. § 1003.2(c)(2), and Nix failed to demonstrate changed

circumstances in Guatemala to qualify for the regulatory exception to the time limit

for filing motions to reopen, see 8 C.F.R. § 1003.2(c)(3)(ii); see also Toufighi, 538

F.3d at 996 (requiring movant to produce material evidence of change in the

country of origin that would establish prima facie eligibility for relief). Further,

the agency did not abuse its discretion in declining to equitably toll the filing

deadline based on Nix’s claim of ineffective assistance of counsel, because Nix

failed to show he acted with due diligence during the twelve years since the final

administrative decision. See Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011)

(equitable tolling is available where petitioner is prevented from filing because of

deception, fraud, or error, as long as petitioner exercised due diligence in

discovering such circumstances); see also Iturribarria v. INS, 321 F.3d 889, 897

(9th Cir. 2003) (due diligence required for a motion to reopen deportation

proceedings based on ineffective assistance).

      PETITION FOR REVIEW DENIED.


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