                                                                           FILED
                              NOT FOR PUBLICATION                           SEP 18 2012

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




                              FOR THE NINTH CIRCUIT



JORGE OMAR MIER-FIORITO,                          No. 10-71195

               Petitioner,                        Agency No. A026-788-775

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

               Respondent.



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

                             Submitted September 10, 2012 **

Before:        WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       Jorge Omar Mier-Fiorito, a native and citizen of Argentina, petitions for

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

reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We

review for abuse of discretion the denial of a motion to reopen. Mohammed v.


          *
             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).
Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny in part and dismiss in part

the petition for review.

      The BIA did not abuse its discretion in denying Mier-Fiorito’s motion to

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

BIA’s October 12, 2004, order dismissing his underlying appeal, see 8 C.F.R.

§ 1003.2(c)(2) (motion to reopen generally must be filed within 90 days of the final

administrative order), and Mier-Fiorito failed to establish grounds for equitable

tolling, see Avagyan v. Holder, 646 F.3d 672, 678-80 (equitable tolling available

where petitioner is prevented from filing because of deception, fraud, or error, as

long as petitioner acts with due diligence in discovering such circumstances).

      We lack jurisdiction to review Mier-Fiorito’s claim that his voluntary

departure order was vacated when he failed to post bond because he did not raise

this claim before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.

2004) (this court lacks jurisdiction to review contentions not raised before the

agency).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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