                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 19 2010

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




                             FOR THE NINTH CIRCUIT



 SAAK AVAKYANTS,                                  No. 07-73421

               Petitioner,                        Agency No. A096-059-399

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

               Respondent.



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

                             Submitted January 11, 2010 **

Before:        BEEZER, TROTT and BYBEE, Circuit Judges.

        Saak Avakyants, a native of Azerbaijan and citizen of Russia, petitions for

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

motion to reopen proceedings. 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 finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

LA/Research
review for abuse of discretion the denial of a motion to reopen. Iturribarria v. INS,

321 F.3d 889, 894 (9th Cir. 2003) (9th Cir. 2007). We deny the petition for

review.

       The BIA did not abuse its discretion in denying Avakyants’ motion to

reopen as untimely because the motion was filed more than two years after the

BIA’s order dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2), and

Avakyants failed to establish that he acted with due diligence to warrant tolling of

the ninety-day deadline for such motions, see Iturribarria, 321 F.3d at 899. In

light of our disposition, we do not reach the issue of prejudice.

       PETITION FOR REVIEW DENIED.




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