                                                                           FILED
                              NOT FOR PUBLICATION                           OCT 02 2013

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




                              FOR THE NINTH CIRCUIT



JUAN JASSO RAMIREZ,                               No. 12-71227

               Petitioner,                        Agency No. A089-267-911

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

               Respondent.



                      On Petition for Review of an Order of the

                             Submitted September 24, 2013 **

Before:        RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.

       Juan Jasso Ramirez, a native and citizen of Mexico, petitions for review of

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

removal proceedings and to reinstate his voluntary departure order. We have

jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial 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).
a motion to reopen, Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011), and we

deny the petition for review.

       The BIA did not abuse its discretion in denying as untimely Jasso Ramirez’s

motion to reopen in order to reinstate voluntary departure, where the motion was

filed after his removal order became final, see 8 C.F.R. § 1003.2(c)(2) (motion to

reopen must be filed within 90 days of final order), and Jasso Ramirez failed to

show the due diligence required for equitable tolling of the filing deadline, see

Avagyan, 646 F.3d at 679-80 (no diligence where petitioner “[a]pparently. . .took

no affirmative steps to investigate” whether prior counsel adequately prepared

claim after having reason to suspect deficient performance).

       In his opening brief, Jasso Ramirez failed to raise, and therefore waived, any

challenge to the BIA’s denial of his motion to reopen based on ineffective

assistance of counsel with respect to the filing of an untimely petition for review.

See Rizk v. Holder, 629 F.3d 1083, 1091 n. 3 (9th Cir. 2011) (a petitioner waives

an issue by failing to raise it in the opening brief).

       PETITION FOR REVIEW DENIED.




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