                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 16 2010

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




                             FOR THE NINTH CIRCUIT



RAFAEL OROZCO RIVERA,                            No. 08-72094

               Petitioner,                       Agency No. A075-304-208

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

               Respondent.



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

                             Submitted June 29, 2010 **

Before:        ALARCÓN, LEAVY, and GRABER, Circuit Judges.

       Rafael Orozco Rivera, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen.

Our jurisdiction is governed by 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, Iturribarria v. INS, 321 F.3d 889, 894

(9th Cir. 2003), and we deny in part and dismiss in part the petition for review.

      The BIA did not abuse its discretion in denying Rivera’s motion to reopen as

untimely because it was filed more than two years after the BIA’s final order of

removal, see 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed within

ninety days of final order of removal), and Rivera did not demonstrate that any

exception to the time bar or that equitable tolling should apply, see Iturribarria,

321 F.3d at 897.

      We lack jurisdiction to review the BIA’s decision not to invoke its sua

sponte authority to reopen proceedings under 8 C.F.R. § 1003.2(a). See Ekimian v.

INS, 303 F.3d 1153, 1159 (9th Cir. 2002).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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