                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 29 2011

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




                             FOR THE NINTH CIRCUIT



JIAN LE YOU,                                     No. 09-70408

               Petitioner,                       Agency No. A079-793-384

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

               Respondent.



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

                             Submitted March 8, 2011 **

Before:        FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.

       Jian Le You, a native and citizen of China, petitions for review of the Board

of Immigration Appeals’ order dismissing his appeal from an immigration judge’s

decision denying his motion to reopen deportation proceedings conducted in

absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse 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).
discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894

(9th Cir. 2003), and we deny the petition for review.

      The agency did not abuse its discretion in denying You’s motion to reopen

as untimely where he filed the motion more than four years after his deportation

order was entered, see 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1) (motion to reopen must

be filed within 180 days of deportation order entered in absentia), and You failed

to show that he acted with the due diligence required to warrant equitable tolling of

the filing deadline. Iturribarria, 321 F.3d at 897 (a petitioner may obtain equitable

tolling based on ineffective assistance of counsel as long as he “act[ed] with due

diligence in discovering the deception, fraud, or error”).

      PETITION FOR REVIEW DENIED.




                                           2                                   09-70408
