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 2020-05

Marisela Nunez v. William Barr ( 2020 )


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  •                               NOT FOR PUBLICATION                        FILED
UNITED STATES COURT OF APPEALS                       MAY 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARISELA NUNEZ,                                 No.    18-71225
Petitioner,                     Agency No. A096-340-608
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 6, 2020**
Before:      BERZON, N.R. SMITH, and MILLER, Circuit Judges.
Marisela Nunez, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying her 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 and review de novo claims of due process violations.
Iturribarria v. INS,
    321 F.3d 889
    , 894 (9th Cir. 2003). We deny in part and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Nunez’s untimely motion to
reopen for failing to demonstrate she acted with the due diligence required for
equitable tolling. See 8 U.S.C. § 1229a(c)(7)(C)(i); see also Avagyan v. Holder,
    646 F.3d 672
    , 679 (9th Cir. 2011) (due diligence requires that petitioner took
reasonable steps to investigate prior counsel’s suspected error, or, if petitioner was
ignorant of counsel’s shortcomings, made reasonable efforts to pursue relief).
We lack jurisdiction to review the BIA’s denial of sua sponte reopening,
where Nunez has not raised a legal or constitutional error. See Bonilla v. Lynch,
    840 F.3d 575
    , 588 (9th Cir. 2016).
Nunez’s contention that the BIA violated her right to due process fails. See
Lata v. INS,
    204 F.3d 1241
    , 1246 (9th Cir. 2000) (requiring error and substantial
prejudice to prevail on a due process claim).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2                                   18-71225