
    Rafael PEREZ-AYALA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
    No. 09-70026.
    United States Court of Appeals, Ninth Circuit.
    Submitted July 12, 2011.
    
    Filed July 21, 2011.
    Rafael Perez-Ayala, Pacoima, CA, pro se.
    Ronald E. LeFevre, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, OIL, Donald Anthony Couvillon, Esquire, U.S. Department of Justice, Washington, DC, for Respondent.
    Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Rafael Perez-Ayala, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. 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 Perez-Ayala’s motion to reopen because it was filed almost five years after the BIA’s October 23, 2003, order, see 8 C.F.R. § 1003.2(c)(2), and Perez-Ayala failed to demonstrate that he acted with the due diligence required for equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir.2003) (equitable tolling available where “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. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     