Arsen Vardanyan v. Eric H. Holder Jr., No. 08-74953 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 26 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT ARSEN VARDANYAN, No. 08-74953 Petitioner, Agency No. A079-604-957 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 19, 2010 ** Before: O SCANNLAIN, TALLMAN, and BEA, Circuit Judges. Arsen Vardanyan, a native and citizen of Armenia, petitions pro se for review of the Board of Immigration Appeals ( BIA ) order denying his motion to reopen removal proceedings based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of * 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). a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny the petition for review. The BIA did not abuse its discretion in denying Vardanyan s motion to reopen because the motion was filed more than three years after the BIA s September 2, 2004, order, see 8 C.F.R. § 1003.2(c)(2) (motion to reopen must generally be filed within 90 days of the final order), and Vardanyan failed to establish that he acted with the due diligence required for equitable tolling, see Iturribarria, 321 F.3d at 897 (deadline can be equitably tolled when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence ). PETITION FOR REVIEW DENIED. 2 08-74953

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