Edwin Rivas Bolvito v. Eric Holder, Jr., No. 09-70555 (9th Cir. 2011)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAR 29 2011 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT EDWIN GIOVANNI RIVAS BOLVITO, Petitioner, No. 09-70555 Agency No. A076-858-638 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 8, 2011 ** Before: FARRIS, O SCANNLAIN, and BYBEE, Circuit Judges. Edwin Giovanni Rivas Bolvito, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals ( BIA ) order dismissing his appeal from an immigration judge s decision denying his motion to reconsider. We have jurisdiction under 8 U.S.C. § 1252. Reviewing for an abuse of discretion, * 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). Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), we deny the petition for review. The BIA properly construed Bolvito s October 10, 2008, filing as a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005). The agency did not abuse its discretion in denying Bolvito s third motion to reopen as untimely because he filed the motion more than nine years after his removal order was entered, see 8 C.F.R. § 1003.23(b)(4)(ii) (motion to reopen must be filed within 180 days of removal order entered in absentia), and Bolvito failed to show that he acted with the due diligence required to warrant equitable tolling of the filing deadline, Iturribarria, 321 F.3d at 897 (a petitioner may obtain equitable tolling based on ineffective assistance of counsel as long as he act[ed] with due diligence in discovering the deception, fraud, or error ). PETITION FOR REVIEW DENIED. 2 09-70555

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