Jose Ramirez Benitez v. Eric Holder, Jr., No. 09-73240 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS SEP 29 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JOSE ALBERTO RAMIREZ BENITEZ, Petitioner, No. 09-73240 Agency No. A027-702-700 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges. Jose Alberto Ramirez Benitez, a native and citizen of El Salvador, petitions pro se for review of the Board of Immigration Appeals order dismissing his appeal from an immigration judge s decision denying his motion to reopen removal proceedings conducted in absentia. Our jurisdiction is governed by 8 U.S.C. * 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). § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny in part and dismiss in part the petition for review. The agency did not abuse its discretion in denying Ramirez Benitez s motion to reopen as untimely where Ramirez Benitez filed the motion almost six years after the in absentia order, see 8 C.F.R. § 1003.23(b)(4)(ii), and Ramirez Benitez did not establish that he was entitled to equitable tolling of the 180-day deadline, see Iturribarria, 321 F.3d at 897 (equitable tolling available to a petitioner who is prevented from filing due to deception, fraud or error, and exercises due diligence in discovering such circumstances). We lack jurisdiction to review the agency s decision not to invoke its sua sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 2 09-73240

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