Baires

MEMORANDUM ***

Roberto Antonio Ramirez Baires petitions for review of the Board of Immigration Appeals’ (BIA) order dismissing his appeal from the Immigration Judge’s order denying his motion to reopen proceedings conducted in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252 . Reviewing for abuse of discretion, Iturri-barria v. INS, 321 F.3d 889, 894 (9th Cir.2003), we deny the petition for review.

The BIA denied Ramirez’s motion to reopen as untimely because it was not filed within the 180 day deadline. See 8 C.F.R. § 1003.23 (b)(4)(ii). Ramirez concedes the motion was not timely filed but argues that he is entitled to equitable tolling due to ineffective assistance of counsel. Specifically, Ramirez argues that his attorney filed a deficient motion to reopen and a frivolous merits appeal, and failed to keep him apprised of the status of his case.

Equitable tolling is available “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error.” Iturribarria v. INS, 321 F.3d at 897 . To the extent that Ramirez’s attorney provided him with ineffective…