
    Victor Manuel SILVA-DIAZ, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
    No. 07-71861.
    United States Court of Appeals, Ninth Circuit.
    Submitted Feb. 16, 2010.
    
    Filed Feb. 25, 2010.
    Edgardo Quintanilla, Quintanilla Law Firm, Inc., Sherman Oaks, CA, for Petitioner.
    Ronald E. Lefevre, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Arthur Leonid Rabin, Francis William Fraser, I, Esquire, Senior Litigation Counsel, Timothy Bo Stanton, U.S. Department of Justice, 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

Victor Manuel Silva-Diaz, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s order denying his motion to reopen. 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, 897 (9th Cir.2003). We deny in part and dismiss in part the petition for review.

The BIA acted within its discretion in denying as untimely Silva-Diaz’s motion to reopen because it was filed nine years after his deportation order became final, see 8 C.F.R. § 1003.2(c)(2), and he did not show that he acted with the due diligence required for equitable tolling, see Singh v. Gonzales, 491 F.3d 1090, 1096-97 (9th Cir.2007).

We lack jurisdiction to review the agency’s decision not to exercise its sua sponte power. See Ekimian v. INS, 303 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.
     