
    Gabriel FELIX-FERNANDEZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
    No. 10-71305.
    United States Court of Appeals, Ninth Circuit.
    Submitted July 12, 2011.
    
    Filed July 25, 2011.
    Steven Anthony Guilin, Esquire, Law Offices of Steven A. Guilin, San Diego, CA, for Petitioner.
    Lindsay Brooke Glauner, Esquire, Trial, OIL, Elizabeth Young, U.S. Department of Justice, Washington, DC, Chief Counsel Ice, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, 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

Gabriel Felix-Fernandez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen based on ineffective assistance of counsel. 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 BIA did not abuse its discretion in denying Felix-Fernandez’s motion to reopen as untimely because the motion was filed more than three years after the agency’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and Felix-Fernandez did not show that he acted with the due diligence required for equitable tolling of the filing deadline, see Iturribarria, 321 F.3d at 897.

We lack jurisdiction to consider the BIA’s discretionary decision not to sua sponte reopen or reconsider pursuant to 8 C.F.R. § 1003.2(a). Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24 (9th Cir.2011); see also Matter of G-D-, 22 I. & N. Dec. 1132, 1135 (BIA 1999) (BIA’s consideration of whether a fundamental change in the law warrants reopening involves an exercise of its sua sponte authority).

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.
     