                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 07 2010

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




                             FOR THE NINTH CIRCUIT



SABINO VELASQUEZ-GONZALEZ,                       No. 07-75092
a.k.a. Sabino Montiel-Velasquez,
                                                 Agency No. A077-343-295
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

               Respondent.



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

                             Submitted May 25, 2010**

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Sabino Velasquez-Gonzalez, a native and citizen of Mexico, petitions for

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

reopen based on ineffective assistance of counsel. Our jurisdiction is governed by

8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to

          *
             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).
reopen, and review de novo questions of law, including claims of due process

violations due to ineffective assistance of counsel. 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 BIA did not abuse its discretion in denying Velasquez-Gonzalez’s

motion to reopen because the motion was filed over a year after the BIA’s March

20, 2006, order dismissing his underlying appeal, see 8 C.F.R. § 1003.2(c)(2), and

Velasquez-Gonzalez failed to demonstrate that he acted with the due diligence

required for equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.

2003) (equitable tolling available “when a petitioner is prevented from filing

because of deception, fraud, or error, as long as the petitioner acts with due

diligence”).

      We lack jurisdiction to review Velasquez-Gonzalez’s contention that he is

eligible for asylum and his request to withdraw his application for voluntary

departure because he failed to exhaust these claims before the BIA. See Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

      We reject Velasquez-Gonzalez’s remaining contentions.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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