Fenglin Duan v. Eric H. Holder Jr., No. 08-73671 (9th Cir. 2010)

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FILED OCT 26 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT FENGLIN DUAN, No. 08-73671 Petitioner, Agency No. A099-398-691 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. Fenglin Duan, a native and citizen of China, petitions for review of the Board of Immigration Appeals ( BIA ) decision denying his motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse 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). discretion the denial of a motion to reopen, Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005), and we dismiss in part and deny in part the petition for review. 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 Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002). The BIA did not abuse its discretion in denying Duan s February 14, 2008, motion to reopen as untimely because it was filed more than a year after the BIA s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and Duan did not show he was entitled to equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (deadline for filing motion to reopen can be equitably tolled when petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence ). PETITION FOR REVIEW DISMISSED in part; DENIED in part. 2 08-73671

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