Bataev

MEMORANDUM **

In these consolidated petitions, Andrei Nikolay Bataev, a native and citizen of Russia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen based on ineffective assistance of counsel (No. 05-76535), and the BIA’s order summarily affirming an immigration judge’s (“IJ”) decision denying his application for asylum and withholding of removal (No. 04-73700). Our jurisdiction is governed by 8 U.S.C. § 1252 . We review the denial of a motion to reopen for abuse of discretion. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review in No. 05-76535, and we dismiss in part and deny in part the petition for review in No. 04-73700.

The BIA did not abuse its discretion in denying Bataev’s motion to reopen as untimely because the motion was filed more than one year after the BIA’s June 30, 2004 final order. See 8 C.F.R. § 1003.2 (c)(2). The BIA properly determined that Bataev was not entitled to equitable tolling because he did not demonstrate that he exercised due diligence in pursuing his ineffective assistance of counsel claim. See Iturribama, 321 F.3d at 897 (equitable tolling available “when a…