                                                                           FILED
                              NOT FOR PUBLICATION                           SEP 28 2010

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




                              FOR THE NINTH CIRCUIT



MIGUEL ANGEL DIAZ,                                No. 08-72809

               Petitioner,                        Agency No. A070-815-740

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

               Respondent.



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

                             Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Miguel Angel Diaz, a native and citizen of El Salvador, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order summarily affirming an

immigration judge’s (“IJ”) decision denying his motion to reopen removal

proceedings. 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, Mohammed v. Gonzales, 400 F.3d 785,

791-92 (9th Cir. 2005), and we deny the petition for review.

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

as untimely because it was filed over nine years 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

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

equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003)

(deadline for filing motion to reopen can be equitably tolled “when a petitioner is

prevented from filing because of deception, fraud, or error, as long as the petitioner

acts with due diligence”).

      Diaz’s contention that the BIA abused its discretion by summarily affirming

the IJ’s decision is foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845, 855

(9th Cir. 2003) (“where we can reach the merits of the decision by the IJ or the

BIA, an additional review of the streamlining decision itself would be

superfluous”).

      PETITION FOR REVIEW DENIED.




                                          2                                       08-72809
