
    Josue Daniel MUNOZ, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
    No. 07-70489.
    United States Court of Appeals, Ninth Circuit.
    Submitted Feb. 16, 2010.
    
    Filed Feb. 26, 2010.
    Curtis F. Pierce, Esq., Law Offices of Curtis F. Pierce, Los Angeles, CA, for Petitioner.
    CAC-District Counsel, Esq., Office of the District Counsel, Department of Homeland Security, Los Angeles, CA, Ronald E. Lefevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Melissa Neiman-Kelting, DOJ-U.S. Department of Justice Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.
    
      Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Josué Daniel Munoz, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen based on ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and de novo questions of law, including claims of ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.

The BIA did not abuse its discretion in denying Munoz’ motion to reopen as untimely because the evidence submitted with the motion failed to establish Munoz acted with the due diligence required to warrant tolling of the 90-day filing deadline. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (equitable tolling is available to petitioner who is prevented-from filing due to deception, fraud or error, and exercises due diligence in discovering such circumstances).

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