                                                                            FILED
                             NOT FOR PUBLICATION                             FEB 23 2010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 DE JESUS BAEZA PRECIADO,                    No. 07-73885

               Petitioner,                        Agency No. A074-810-468

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

               Respondent.



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

                             Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Jose de Jesus Baeza Preciado, a native and citizen of Mexico, petitions for

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

motion to reopen removal proceedings. We have jurisdiction under 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).

AR/Research
§ 1252. We review for abuse of discretion the denial of a motion to reopen, see

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

review.

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

untimely because it was filed eight months 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 ninety

days of final order of removal), and Baeza did not show he was entitled to

equitable tolling, see Iturribarria, 321 F.3d at 897 (deadline for filing motion to

reopen can be equitably tolled “when petitioner is prevented from filing because of

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

also Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (to prevail on

ineffective assistance of counsel claim, alien must demonstrate prejudice).

       In light of our conclusion, we need not reach Baeza’s remaining contentions.

       PETITION FOR REVIEW DENIED.




AR/Research                                2                                     07-73885
