Alvarenga-Velasquez v. Holder ( 2010 )

FILED
NOT FOR PUBLICATION JAN 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDNA MARIBEL ALVARENGA- No. 07-73357
VELASQUEZ,
Agency No. A070-956-179
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Edna Maribel Alvarenga-Velasquez, a native and citizen of Honduras,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying
her motion to reopen deportation proceedings based on ineffective assistance of
*
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).
1
counsel. We have jurisdiction pursuant to 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). We deny the petition for review.
The BIA did not abuse its discretion in denying Alvargena-Velasquez’s
motion to reopen as untimely because it was filed more than 10 years after the
BIA’s final order, see 8 C.F.R. § 1003.2(c)(2), and Alvargena-Velasquez failed to
establish that she exercised due diligence required to warrant tolling of the filing
deadline. See id. at 897 (equitable tolling is available to a petitioner who
establishes deception, fraud, or error, and exercised due diligence in discovering
such circumstances), see also Singh v. Gonzales, 491 F.3d 1090, 1095-96 (9th Cir.
2007).
To the extent Alvargena-Velasquez contends that the BIA failed to consider
some or all of the evidence she submitted with the motion to reopen, she has not
overcome the presumption that the BIA did review the record. See Ranco-Rosendo
v. Gonzalez, 454 F.3d 965, 966 (9th Cir. 2006).
PETITION FOR REVIEW DENIED.
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