Xiu Zhen Chen 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).
LR/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIU ZHEN CHEN,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-72030
Agency No. A079-419-651
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.
Xiu Zhen Chen, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen. Our
jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the
FILED
FEB 23 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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 acted within its discretion in denying as untimely Chen’s motion to
reopen because it was filed more than 90 days after the BIA’s final removal order,
see 8 C.F.R. § 1003.2(c)(2), and Chen did not show she was entitled to equitable
tolling, see Iturribarria, 321 F.3d at 897 (deadline for filing a motion to reopen can
be equitably tolled where a petitioner acts with due diligence).
We lack jurisdiction to review the agency’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).
We lack jurisdiction to review Chen’s ineffective assistance of counsel claim
against current counsel because she failed to raise it before the BIA. See Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) .
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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