                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 24 2011

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




                            FOR THE NINTH CIRCUIT



SHENGGANG NING,                                  No. 09-71809

              Petitioner,                        Agency No. A096-051-368

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

              Respondent.



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

                             Submitted March 8, 2011 **

Before:       FARRIS, LEAVY, and BYBEE, Circuit Judges.

       Shenggang Ning, a native and citizen of China, petitions pro se for review of

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

proceedings due to ineffective assistance of counsel. Our jurisdiction is governed


          *
             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).
by 8 U.S.C. § 1252. We review for abuse of 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 by denying Ning’s motion to reopen

because the motion was filed more than three years after the BIA’s October 20,

2005, order dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2), and

Ning failed to demonstrate that he acted with the due diligence required to warrant

equitable tolling, 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). If we had jurisdiction to review the

BIA’s decision, we would find no abuse of discretion.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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