Geovana Toledo v. Jefferson Sessions , 682 F. App'x 601 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEOVANA ANTONIA TOLEDO, No. 12-70980
Petitioner, Agency No. A070-814-967
v.
MEMORANDUM *
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Geovana Antonia Toledo, a native and citizen of Guatemala, petitions pro se
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her
appeal from an immigration judge’s order denying her motion to reopen removal
proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252.
*
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).
We review for abuse of discretion the denial of a motion to reopen, and review de
novo claims of due process violations. Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th
Cir. 2004). We deny the petition for review.
The agency did not abuse its discretion in denying Toledo’s motion to
reopen as untimely, where it was filed 12 years after her in absentia order of
removal, see 8 U.S.C. § 1229a(b)(5)(C), and she failed to establish the due
diligence required for equitable tolling of the filing deadline, see Avagyan v.
Holder, 646 F.3d 672, 679 (9th Cir. 2011), and failed to establish materially
changed country conditions in Guatemala to qualify for the regulatory exception to
the filing deadline, see 8 C.F.R. § 1003.23(b)(4)(i); Toufighi v. Mukasey, 538 F.3d
988, 996 (9th Cir. 2008) (to prevail on a motion to reopen based on changed
country conditions, applicant must produce material evidence of changed country
conditions that establishes prima facie eligibility for the relief sought).
Contrary to Toledo’s contention, the BIA’s decision in Matter of M-S-, 22 I.
& N. Dec. 349 (BIA 1998), concerning aliens who do not receive oral warnings of
the consequences of failing to appear, does not provide an independent basis for
untimely reopening of her removal proceedings to apply for relief from removal.
See id. at 357 (filing deadline applies to motions to reopen based on lack of oral
notice). Accordingly, Toledo’s due process claim fails. See Lata v. INS, 204 F.3d
1241, 1246 (9th Cir. 2000) (to prevail on a due process challenge, an alien must
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show error and prejudice).
In light of this disposition, we do not reach Toledo’s remaining contentions
regarding exceptional circumstances or eligibility for relief under the Nicaraguan
Adjustment and Central American Relief Act of 1997.
PETITION FOR REVIEW DENIED.
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