                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 29 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



EDWIN GIOVANNI RIVAS BOLVITO,                    No. 09-70555

               Petitioner,                       Agency No. A076-858-638

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

               Respondent.



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

                             Submitted March 8, 2011 **

Before:        FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.

       Edwin Giovanni Rivas Bolvito, a native and citizen of Guatemala, petitions

for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his

appeal from an immigration judge’s decision denying his motion to reconsider.

We have jurisdiction under 8 U.S.C. § 1252. Reviewing for an abuse of discretion,


          *
             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).
Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), we deny the petition for

review.

      The BIA properly construed Bolvito’s October 10, 2008, filing as a motion

to reopen. Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005). The

agency did not abuse its discretion in denying Bolvito’s third motion to reopen as

untimely because he filed the motion more than nine years after his removal order

was entered, see 8 C.F.R. § 1003.23(b)(4)(ii) (motion to reopen must be filed

within 180 days of removal order entered in absentia), and Bolvito failed to show

that he acted with the due diligence required to warrant equitable tolling of the

filing deadline, 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”).

      PETITION FOR REVIEW DENIED.




                                           2                                    09-70555
