FILED

NOT FOR PUBLICATION MAR 01 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

JORGE ALBERTO GUTIERREZ No. 06-74781

COLOCHO,

Agency No. A073-967-978 Petitioner,

v. MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

Respondent.

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

Submitted February 16, 2010 **

Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

Jorge Alberto Gutierrez Colocho, a native and citizen of El Salvador,

petitions for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing his appeal from an immigration judge’s (“IJ”) decision denying his

* 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).

RB/Research motion to reopen and rescind an in absentia removal order. We have jurisdiction

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

motion to reopen. Mohammed v. Gonzales, 400 F.3d 786, 791 (9th Cir. 2005). We

deny the petition for review.

The agency acted within its discretion in denying as number barred

Gutierrez Colocho’s second motion to reopen before the IJ. See 8 C.F.R.

§ 1003.23(b)(1). The BIA did not abuse its discretion in declining to equitably toll

the numerical limitation on motions to reopen because the record does not support

Gutierrez Colocho’s claim that prior counsel either filed Gutierrez Colocho’s first

motion to reopen pro se, or otherwise provided ineffective legal assistance. See

Rodriguez-Lariz v. INS, 282 F.3d 1218, 1224 (9th Cir. 2002) (number bar

amenable to equitable tolling).

Petitioner’s remaining contentions lack merit.

PETITION FOR REVIEW DENIED.

RB/Research 2 06-74781