EANG IM V. ERIC HOLDER, JR., No. 09-73527 (9th Cir. 2012)

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FILED SEP 18 2012 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT EANG IM, No. 09-73527 Petitioner, Agency No. A079-539-378 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted September 10, 2012 ** Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges. Eang Im, a native and citizen of Cambodia, petitions for review of a Board of Immigration Appeals ( BIA ) order denying his motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 * 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). F.3d 785, 791 (9th Cir. 2005). We deny in part and dismiss in part the petition for review. The BIA did not abuse its discretion in denying Im s motion to reopen because the motion was filed nearly nine months after the BIA s January 5, 2009, decision vacating the immigration judge s decision to defer Im s removal and ordering him removed, see 8 C.F.R. § 1003.2(c)(2) (motion to reopen generally must be filed within 90 days of the final administrative order), and Im failed to allege grounds for equitable tolling, see Avagyan v. Holder, 646 F.3d 672, 678-80 (equitable tolling available where petitioner is prevented from filing because of deception, fraud, or error, as long as petitioner acts with due diligence in discovering such circumstances). We lack jurisdiction to review the BIA s decision not to invoke its sua sponte authority to reopen proceedings under 8 C.F.R. § 1003.2(a). See MejiaHernandez v. Holder, 633 F.3d 818, 824 (9th Cir. 2011). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 2 09-73527

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