Merida-Mazariegos

MEMORANDUM

Erik Merida-Mazariegos, a native and citizen of Guatemala, 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 reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.2005). We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying Merida-Mazariegos’ motion to reopen as untimely because the motion was filed more than nine years after the BIA’s November 14, 1997, order dismissing his appeal. See 8 C.F.R. § 1003.2 (c)(2). The BIA acted within its discretion in determining that the evidence submitted with the motion to reopen failed to establish the due diligence required to warrant tolling of the motions deadline. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (equitable tolling is available to a petitioner who is prevented from filing due to deception, fraud or error, and exercises due diligence in discovering such circumstances).

Contrary to Merida-Mazariegos’ contention, the BIA did not engage in an…