Arturo Lopez Guitierrez 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NOT FOR PUBLICATION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
ARTURO LOPEZ GUITIERREZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-70078
Agency No. A073-969-082
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.
Arturo Lopez Guitierrez, 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 decision denying his motion to reopen based on ineffective
assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for
FILED
SEP 21 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-70078 2
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 BIA did not abuse its discretion in denying Lopez Guitierrez’s motion
to reopen as untimely because he filed the motion more than ten years after the IJ’s
November 14, 1996, order, see 8 C.F.R. § 1003.23(b)(4)(iii), and Lopez Guitierrez
failed to establish that he acted with the due diligence required for equitable
tolling, see Iturribarria, 321 F.3d at 897; cf. Ghahremani v. Gonzales, 498 F.3d
993, 1000 (9th Cir. 2007) (due diligence where petitioner made “unbroken efforts”
to remedy his immigration status).
Lopez Guitierrez also argues that the BIA ignored his request to reopen sua
sponte. We lack jurisdiction to review the BIA’s refusal to reopen removal
proceedings sua sponte. See Toufighi v. Mukasey, 538 F.3d 988, 993 n.8 (9th Cir.
2008).
We lack jurisdiction to review Lopez Guitierrez’s contention regarding his
underlying removal order because he did not exhaust that contention before the
BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
Lopez Guitierrez’s remaining contention is not persuasive.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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