Calderon-Reyes

MEMORANDUM

Jesus Calderon-Reyes, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s order denying his motion to reopen deportation proceedings conducted in ab-sentia. We have jurisdiction under 8 U.S.C. § 1252 . We review for abuse of discretion the denial of a motion to reopen, and review de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.

The agency used the correct standard and did not abuse its discretion in denying Calderon-Reyes’ motion to reopen as untimely, where it was filed more than 10 years after his deportation order became administratively final, see 8 C.F.R. § 1003.23 (b)(1), (4)(iii)(A)(l); Matter of M-S-, 22 I. & N. Dec. 349, 356-57 (BIA 1998) (a motion to reopen an in absentia order to apply for adjustment of status is subject to the 90-day motion to reopen deadline), and he failed to demonstrate the due diligence required for equitable tolling of the filing deadlines, see Avagyan v. Holder, 646 F.3d 672, 679-80 (9th Cir.2011) (equitable tolling is available to a petitioner who is prevented from filing…