                                                                            FILED
                             NOT FOR PUBLICATION                             APR 14 2010

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




                             FOR THE NINTH CIRCUIT



CARLOS HERNANDEZ-AMAYA, a.k.a                    No. 07-74481
Carlos Hernandez,
                                                 Agency No. A029-129-971
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

               Respondent.



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

                              Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       Carlos Hernandez-Amaya, a native and citizen of El Salvador, petitions for

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

reopen based on ineffective assistance of counsel. Our jurisdiction is governed by

          *
             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).
8 U.S.C. § 1252. Reviewing for abuse of discretion, Iturribarria v. INS, 321 F.3d

889, 894 (9th Cir. 2003), we deny in part and dismiss in part the petition for

review.

      The BIA did not abuse its discretion in denying Hernandez-Amaya’s motion

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

January 6, 2005, order dismissing the underlying appeal, see 8 C.F.R.

§ 1003.2(c)(2), and Hernandez-Amaya failed to demonstrate that he acted with the

due diligence required for equitable tolling, see Iturribarria, 321 F.3d at 897

(equitable tolling available “when a petitioner is prevented from filing because of

deception, fraud, or error, as long as the petitioner acts with due diligence”); see

also Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir. 2007) (limitations

period may be tolled until petitioner “definitively learns” of counsel’s

defectiveness).

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

sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159

(9th Cir. 2002).

      We lack jurisdiction to review Hernandez-Amaya’s remaining contention

because he failed to raise it before the BIA. See Barron v. Ashcroft, 358 F.3d 674,




                                           2                                      07-74481
678 (9th Cir. 2004).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                3                          07-74481
