
    Saak AVAKYANTS, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
    No. 07-73421.
    United States Court of Appeals, Ninth Circuit.
    Submitted Jan. 11, 2010.
    
    Filed Jan. 19, 2010.
    Reynold E. Finnegan, Esquire, Finnegan & Diba, a Law Corporation, Los An-geles, CA, for Petitioner.
    CAC-District Counsel, Esquire, Office of the District Counsel Department of Homeland Security, Los Angeles, CA, Francis William Fraser, I, Esquire, Senior Litigation Counsel, U.S. Department of Justice, Washington, DC, Ronald E. Le-fevre, Office of the District Counsel Department of Homeland Security, San Francisco, CA, for Respondent.
    Before: BEEZER, TROTT and BYBEE, Circuit Judges.
    
      
       The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Saak Avakyants, a native of Azerbaijan and citizen of Russia, petitions for review of an order of the Board of Immigration Appeals’ (“BIA”) denying his motion to reopen proceedings. We have jurisdiction under 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). We deny the petition for review.

The BIA did not abuse its discretion in denying Avakyants’ motion to reopen as untimely because the motion was filed more than two years after the BIA’s order dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2), and Avakyants failed to establish that he acted with due diligence to warrant tolling of the ninety-day deadline for such motions, see Iturribar-ria, 321 F.3d at 899. In light of our disposition, we do not reach the issue of prejudice.

PETITION FOR REVIEW DENIED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     