Jose Alberto RAMIREZ BENITEZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent, 397 F. App'x 401

MEMORANDUM Jose Alberto Ramirez Benitez, a native and citizen of El Salvador, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his motion to reopen removal proceedings conducted in absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the 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 agency did not abuse its discretion in denying Ramirez Benitez’s motion to reopen as untimely where Ramirez Benitez filed the motion almost six years after the in absentia order, see 8 C.F.R. § 1003.23(b)(4)(h), and Ramirez Benitez did not establish that he was entitled to equitable tolling of the 180-day deadline, see Iturribarria, 321 F.3d at 897 (equitable tolling available to a petitioner who is prevented from filing due to deception, fraud or error, and exercises due diligence in discovering such circumstances).

We lack jurisdiction to review the agency’s decision not to invoke its sua sponte authority to reopen proceedings. See Eld-mian v. INS, 308 F.3d 1153, 1159 (9th Cir.2002). 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.