Angel Armando Ayala v. Eric Holder, Jr., No. 09-72400 (9th Cir. 2011)

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FILED JAN 20 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT ANGEL ARMANDO AYALA, Petitioner, No. 09-72400 Agency No. A073-802-672 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 10, 2011 ** Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges. Angel Armando Ayala, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals order dismissing his appeal from an immigration judge s decision denying his motion to reopen deportation proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. * 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). 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 the petition for review. The agency did not abuse its discretion in denying Ayala s motion to reopen as untimely where he filed the motion more than nine years after his deportation order was entered, and failed to show that he acted with the due diligence required to warrant equitable tolling of the filing deadline. See 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1) (motion to reopen must be filed within 180 days of deportation order entered in absentia); 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 ). In light of our disposition, we do not address Ayala s remaining contentions. PETITION FOR REVIEW DENIED. 2 09-72400

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