                                                                            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                             NOT FOR PUBLICATION                             APR 14 2010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



LENA SIRENKO,                                    No. 07-74837

               Petitioner,                       Agency No. A079-531-111

  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.

       Lena Sirenko, a native and citizen of Armenia, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen based

on ineffective assistance of counsel. We have jurisdiction pursuant to 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).
§ 1252. Reviewing for abuse of discretion, 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 Sirenko’s motion to reopen

because the motion was filed more than three years after the BIA’s February 2,

2004, order dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2), and

Sirenko failed to demonstrate that she 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 Singh v. Gonzales, 491

F.3d 1090, 1096-97 (9th Cir. 2007).

      In light of our disposition, we do not reach Sirenko’s remaining contentions.

      We grant Alexander Morales’ motion to withdraw as counsel of record. The

Clerk shall amend the docket to reflect that Sirenko is proceeding pro se.

Withdrawn counsel shall serve this disposition on Sirenko.

      PETITION FOR REVIEW DENIED.




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