FILED

NOT FOR PUBLICATION OCT 26 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT JIAN YUAN ZHEN, No. 09-72906

Petitioner, Agency No. A044-195-740 v.

MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted October 19, 2010 ** Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.

Jian Yuan Zhen, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of

*

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). a motion to reopen. 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 Zhen’s third motion to reopen because the motion was filed more than six years after the BIA’s March 12, 2003, order, see 8 C.F.R. § 1003.2(c)(2) (motion to reopen must generally be filed within 90 days of the final order), and Zhen failed to establish that he acted with the due diligence required for equitable tolling, see Iturribarria, 321 F.3d at 894 (deadline can be equitable tolled “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence”).

PETITION FOR REVIEW DENIED.

2 09-72906