Oganesyan v. Mukasey

MEMORANDUM ** Arutyun Oganesyan, a native and citizen of Armenia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings based upon ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252 . Reviewing for abuse of discretion, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), we deny the petition for review. The BIA did not abuse its discretion in denying as untimely Oganesyan’s motion to reopen because the motion was filed more than three years after the BIA’s February 28, 2002 order. See 8 C.F.R. § 1003.2 (c)(2) (motion to reopen must be filed no later than 90 days after the final administrative decision). The BIA properly concluded that Oganesyan was not entitled to equitable tolling because he did not demonstrate that he exercised due diligence. See Iturribarria, 321 F.3d at 897 (equitable tolling available “when a petitioner is prevented from filing because of *699 deception, fraud, or error, as long as the petitioner acts with due diligence”). Oganesyan’s contention that he need not demonstrate diligence is unpersuasive. We do not reach Oganesyan’s remaining contentions. PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.