                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                       FILED
                              FOR THE NINTH CIRCUIT                         FEB 26 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

 JOSUE DANIEL MUNOZ,                              No. 07-70489

               Petitioner,                        Agency No. A072-536-383

   v.
                                                  MEMORANDUM *
 ERIC H. HOLDER Jr., Attorney General,

               Respondent.



                       On Petition for Review of an Order of the
                           Board of Immigration Appeals

                             Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Josue Daniel Munoz, a native and citizen of Guatemala, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen

based on ineffective assistance of counsel. We have jurisdiction pursuant to



          *
             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).

JT/Research
8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to

reopen, and de novo questions of law, including claims of ineffective assistance of

counsel. Mohammed v. Gonzales, 400 F.3d 785, 791- 92 (9th Cir. 2005). We deny

the petition for review.

        The BIA did not abuse its discretion in denying Munoz’ motion to reopen as

untimely because the evidence submitted with the motion failed to establish Munoz

acted with the due diligence required to warrant tolling of the 90-day filing

deadline. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (equitable

tolling is available to petitioner who is prevented from filing due to deception,

fraud or error, and exercises due diligence in discovering such circumstances).

        PETITION FOR REVIEW DENIED.




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