Jose Alberto Ramirez Benitez 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NOT FOR PUBLICATION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
JOSE ALBERTO RAMIREZ BENITEZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 09-73240
Agency No. A027-702-700
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 13, 2010**
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Jose Alberto Ramirez Benitez, a native and citizen of El Salvador, petitions
pro se for review of the Board of Immigration Appeals’ order dismissing his appeal
from an immigration judge’s decision denying his motion to reopen removal
proceedings conducted in absentia. Our jurisdiction is governed by 8 U.S.C.
FILED
SEP 29 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-73240 2
§ 1252. 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 in part and
dismiss in part the petition for review.
The agency did not abuse its discretion in denying Ramirez Benitez’s motion
to reopen as untimely where Ramirez Benitez filed the motion almost six years
after the in absentia order, see 8 C.F.R. § 1003.23(b)(4)(ii), and Ramirez Benitez
did not establish that he was entitled to equitable tolling of the 180-day deadline,
see Iturribarria, 321 F.3d at 897 (equitable tolling available to a petitioner who is
prevented from filing due to deception, fraud or error, and exercises due diligence
in discovering such circumstances).
We lack jurisdiction to review the agency’s decision not to invoke its sua
sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159
(9th Cir. 2002).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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