                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 22 2010

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




                              FOR THE NINTH CIRCUIT



 HOSSEIN KAFSHDAR GOHARIAN,                       No. 07-71189

               Petitioner,                        Agency No. A075-749-651

   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.

        Hossein Kafshdar Goharian, a native and citizen of Iran, petitions for review

of a Board of Immigration Appeals’ (“BIA”) order denying his second motion to

reopen proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review



          *
             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).

LA/Research
for abuse of discretion the denial of a motion to reopen. Iturribarria v. INS, 321

F.3d 889, 894 (9th Cir. 2003). We deny the petition for review.

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

as untimely because it was filed more than three years after the BIA’s final order,

see 8 C.F.R. § 1003.2(c)(2), and Goharian failed to establish that he exercised due

diligence to warrant tolling of the filing deadline, see Iturribarria, 321 F.3d at 897

(equitable tolling is available to a petitioner who establishes deception, fraud, or

error in timely filing, and who exercised due diligence in discovering such

circumstances); see also Singh v. Gonzales, 491 F.3d 1090, 1095-97 (9th Cir.

2007).

         We lack jurisdiction over the BIA’s April 2007 order because this petition is

not timely as to that order. See Andia v. Ashcroft, 359 F.3d 1181, 1183 n.3 (9th

Cir. 2004) (per curiam).

         PETITION FOR REVIEW DENIED.




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