Noel Enrique Payan SANDOVAL, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent, 222 F. App'x 672

MEMORANDUM Noel Enrique Payan Sandoval, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. To the extent we have jurisdiction, it is conferred by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002). We deny in part and dismiss in part the petition for review. Payan Sandoval filed his second motion to reopen more than two years after the BIA issued its final order.

The BIA did not abuse its discretion in refusing to apply equitable tolling in this case because Payan Sandoval did not establish that he acted with due diligence in pursuing his ineffective assistance of counsel claim. Cf. Rodriguez-Lariz, 282 F.3d at 1227 (applying equitable tolling where petitioners promptly retained new counsel and filed a motion to reopen within one month of receiving notification that their initial motion for reconsideration had been denied). Accordingly, the BIA did not abuse its discretion in denying the motion as untimely and numerically barred. See 8 C.F.R. § 1003.2(c)(2).

We lack jurisdiction to reinstate Payan Sandoval’s voluntary departure period, See Garcia v. Ashcroft, 368 F.3d 1157, 1159 (9th Cir.2004). PETITION FOR REVIEW DENIED in part; DISMISSED in part. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.