                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                          JAN 16 2013

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

RIGOBERTO CASTREJON-TELLES,                      No. 11-71863

               Petitioner,                       Agency No. A037-441-199

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

               Respondent.



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

                             Submitted January 15, 2013 **

Before:        SILVERMAN, BEA, and NGUYEN, Circuit Judges.

       Rigoberto Castrejon-Telles, a native and citizen of Mexico, petitions for

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

reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of

discretion the denial of a motion to reopen. Avagyan v. Holder, 646 F.3d 672, 674


          *
             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).
(9th Cir. 2011). We deny in part and dismiss in part the petition for review.

      The BIA did not abuse its discretion in denying Castrejon-Telles’ motion to

reopen as untimely where the motion was filed more than twenty-one years after

the BIA’s July 5, 1989, order affirming the immigration judge’s order of

deportation, and Castrejon-Telles did not establish that an exception to the filing

deadline applied. See 8 C.F.R. §§ 1003.2(c)(2) (A motion to reopen “must be filed

no later than 90 days after the date on which the final administrative decision was

rendered in the proceeding sought to be reopened, or on or before September 30,

1996, whichever is later.”), 1003.2(c)(3) (providing exceptions).

      To the extent the BIA also concluded that equitable tolling did not apply, the

BIA did not abuse its discretion in denying the motion on the ground that

Castrejon-Telles failed to establish due diligence. See Avagyan, 646 F.3d at 678-

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

error, and exercised due diligence in discovering such circumstances).

      We lack jurisdiction to review the BIA’s discretionary decision not to invoke

its sua sponte authority to reopen deportation proceedings under 8 C.F.R.

§ 1003.2(a). See Sharma v. Holder, 633 F.3d 865, 874 (9th Cir. 2011).

      Castrejon-Telles’ remaining contentions are unavailing.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.


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