                                                                            FILED
                             NOT FOR PUBLICATION                             FEB 14 2013

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




                              FOR THE NINTH CIRCUIT



JOSE DANIEL CARRILLO-RIVERA,                      No. 12-70339

               Petitioner,                        Agency No. A070-171-349

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

               Respondent.



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

                             Submitted February 11, 2013 **

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Jose Daniel Carrillo-Rivera, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) 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


          *
             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).
review for abuse of discretion the denial of 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 Carrillo-Rivera’s motion to

reopen as untimely where the motion was filed more than five years after his

removal order became final, see 8 C.F.R. § 1003.2(c)(2), and Carrillo-Rivera failed

to establish grounds for equitable tolling of the filing deadline, see Avagyan, 646

F.3d at 678-80 (equitable tolling is available to a petitioner who establishes he was

prevented from filing because of deception, fraud or error, and exercised due

diligence in discovering such circumstances).

      Contrary to Carrillo-Rivera’s contention, the BIA did not engage in

impermissible fact-finding where it applied the law to undisputed facts. See 8

C.F.R. § 1003.1(d)(3)(ii).

      In light of our disposition, we need not reach Carillo-Rivera’s remaining

contentions.

      PETITION FOR REVIEW DENIED.




                                          2                                     12-70339
