Victor Manuel Silva-Diaz 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).
NHY/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR MANUEL SILVA-DIAZ,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-71861
Agency No. A097-973-401
MEMORANDUM *
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.
Victor Manuel Silva-Diaz, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s order denying his motion to reopen. Our jurisdiction
FILED
FEB 25 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

NHY/Research 07-71861 2
is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a
motion to reopen. Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003). We deny
in part and dismiss in part the petition for review.
The BIA acted within its discretion in denying as untimely Silva-Diaz’s
motion to reopen because it was filed nine years after his deportation order became
final, see 8 C.F.R. § 1003.2(c)(2), and he did not show that he acted with the due
diligence required for equitable tolling, see Singh v. Gonzales, 491 F.3d 1090,
1096-97 (9th Cir. 2007).
We lack jurisdiction to review the agency’s decision not to exercise its sua
sponte power. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

-- 2 of 2 --