Fenglin Duan v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FENGLIN DUAN,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-73671
Agency No. A099-398-691
MEMORANDUM*
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
FILED
OCT 26 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-73671 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.

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