                                                                           FILED
                              NOT FOR PUBLICATION                           SEP 28 2010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 MARIA DUENAS,                                No. 08-73449

               Petitioner,                        Agency No. A079-521-732

  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 Maria Duenas, a native and citizen of Mexico, petitions pro se 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, Mohammed v.


          *
             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).
Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005), and we deny the petition for

review.

      The BIA did not abuse its discretion in denying Duenas’ January 9, 2008,

motion to reopen as untimely because it was filed over five years after the BIA’s

final order of removal, see 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be

filed within 90 days of final order of removal), and Duenas did not show he was

entitled to equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.

2003) (deadline for filing motion to reopen 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.




                                            2                                   08-73449
