Sigfredo Bonila-Cortez v. Eric Holder, Jr. ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 16 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
SIGFREDO ALEXANDER BONILA- No. 11-72396
CORTEZ,
Agency No. A078-981-634
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 13, 2012 **
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
Sigfredo Alexander Bonila-Cortez, a native and citizen of El Salvador,
petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s (“IJ”) decision denying his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
motion to reopen removal proceedings conducted in absentia. We have jurisdiction
under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
reopen, and review de novo constitutional claims. 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 Bonila-Cortez’s motion to
reopen as untimely where it was filed nearly four and a half years after his order of
removal, see 8 C.F.R. § 1003.23(b)(4)(ii) (an alien seeking to reopen and rescind
an in absentia removal order based on exceptional circumstances must file the
motion within 180 days), and Bonila-Cortez failed to establish that he qualified for
equitable tolling of the filing deadline, see Avagyan v. Holder, 646 F.3d 672, 678-
80 (9th Cir. 2011) (equitable tolling is available to a petitioner who establishes that
he suffered from deception, fraud or error, and exercised due diligence in
discovering such circumstances).
It follows that the BIA did not violate Bonila-Cortez’s due process rights by
denying the motion. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(requiring error and prejudice to prevail on a due process claim); see also
Valencia-Fragoso v. INS, 321 F.3d 1204, 1206 (9th Cir. 2003) (per curiam) (“It is
well settled that if an alien is provided proper written notice of a removal hearing
2 11-72396
and fails to attend, the immigration judge is required to enter an in absentia order
of removal.” (internal citation omitted)).
Bonila-Cortez’s contention that the IJ’s decision violated his due process
rights because it was inadequate is unsupported and unavailing. See Najmabadi v.
Holder, 597 F.3d 983, 990-91 (9th Cir. 2010).
In light of our disposition, we need not address Bonila-Cortez’s remaining
contentions.
PETITION FOR REVIEW DENIED.
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