                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 27 2014

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



                             FOR THE NINTH CIRCUIT


HIPOLITO NESTOR CHAMU,                           No. 12-71893

               Petitioner,                       Agency No. A073-809-394

  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, 2014**

Before:        CANBY, SILVERMAN, and PAEZ, Circuit Judges.

       Hipolito Nestor Chamu, a native and citizen of Mexico, petitions pro se for

review of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s decision denying his motion to reopen removal proceedings

conducted in absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. We review


          *
             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).
for abuse of discretion the denial of a motion to reopen, and review de novo

constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.

2005). We deny in part and dismiss in part the petition for review.

      The agency did not abuse its discretion in denying as untimely Chamu’s

motion to reopen alleging exceptional circumstances, where it was not submitted

within 180 days of the IJ’s October 8, 1999, order, see 8 C.F.R. § 1003.23(b)(4)(ii)

(an alien seeking to reopen and rescind an in absentia removal order based on

exceptional circumstances must file the motion within 180 days), and he failed to

assert that he qualified for equitable tolling of the filing deadline, see Avagyan v.

Holder, 646 F.3d 672, 678-80 (9th Cir. 2011). It follows that the agency did not

violate Chamu’s due process rights by denying the motion. See Lata v. INS, 204

F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a due

process claim).

      We lack jurisdiction to review the agency’s discretionary decision not to

reopen removal proceedings sua sponte. See Mejia-Hernandez v. Holder, 633 F.3d

818, 823-24 (9th Cir. 2011).

      In light of this disposition, we need not reach Chamu’s remaining

contention.

      PETITION FOR REVIEW DENIED, in part; DISMISSED in part.


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