Tao Luan v. Gonzales

MEMORANDUM ** Tao Luan, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. We review the denial of a motion to reopen for abuse of discretion. Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004). We deny in part and dismiss in part the petition for review. The BIA did not abuse its discretion by refusing to apply equitable tolling to Luan’s second motion to reopen because he failed to demonstrate that he acted with due diligence in pursuing the ineffective assistance of counsel claim against his pri- or attorney. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (equitable tolling applies where the petitioner acts with due diligence in discovering previous counsel’s deception, fraud or error). We lack jurisdiction to review the BIA’s decision not to exercise its sua sponte authority to reopen and reissue the March *577 5, 2005 decision in Luan’s case. See Ekimian v. INS, 803 F.3d 1153, 1159 (9th Cir.2002). PETITION FOR REVIEW DENIED in part; DISMISSED in part. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9 th Cir. R. 36-3.