                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 30 2015

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


EDGAR MORRIS ESCOBAR-                            No. 12-72820
ALARCON,
                                                 Agency No. A070-097-323
               Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


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

                             Submitted January 21, 2015**

Before:        CANBY, GOULD, and N.R. SMITH, Circuit Judges.

       Edgar Morris Escobar-Alarcon, a native and citizen of El Salvador, petitions

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

motion to reopen deportation proceedings based on ineffective assistance of

counsel. 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 (9th Cir. 2005). We deny the petition for review.

      The BIA did not abuse its discretion in denying Escobar-Alarcon’s motion to

reopen as untimely, where he filed the motion more than four years after his

deportation order became final, see 8 C.F.R. § 1003.2(c)(2) (a motion to reopen

must be filed within 90 days of a final order), and failed to establish the due

diligence required to warrant equitable tolling of the motions deadline, see

Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (equitable tolling is

available to a petitioner who is prevented from timely filing a motion to reopen due

to deception, fraud or error, as long as petitioner exercises due diligence in

discovering such circumstances).

      Because the timeliness determination is dispositive, we do not reach

Escobar-Alarcon’s remaining contentions.

      This dismissal is without prejudice to petitioner’s seeking prosecutorial

discretion or deferred action from the Department of Homeland Security. See

Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,

483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at

any stage, including after the conclusion of judicial review).

      PETITION FOR REVIEW DENIED.

                                                                                  12-72820
