                                                                          FILED
                             NOT FOR PUBLICATION                           JUN 29 2011

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




                             FOR THE NINTH CIRCUIT



ROOD STUARDO PENA,                               No. 10-70449

               Petitioner,                       Agency No. A098-469-183

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

               Respondent.



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

                             Submitted June 15, 2011 **

Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

       Rood Stuardo Pena, a native and citizen of Guatemala, petitions for review

of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s decision denying his motion to reopen based on ineffective

assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for


          *
             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).
abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400

F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review.

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

because it was filed more than three years after his final administrative order, see 8

C.F.R. § 1003.23(b)(1), and Pena failed to demonstrate that he warranted equitable

tolling of the filing deadline, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.

2003) (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”).

      PETITION FOR REVIEW DENIED.




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