Velia Barrera Martinez v. Jefferson Sessions, III ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VELIA BARRERA MARTINEZ, No. 16-73998
Petitioner, Agency No. A095-383-004
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 12, 2018**
Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
Velia Barrera Martinez, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen
removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for
abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400
F.3d 785, 791 (9th Cir. 2005). We deny the petition for review.
*
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).
The BIA did not abuse its discretion in denying Barrera Martinez’s motion
to reopen as untimely, where she filed the motion nearly five years after the filing
deadline, and did not present sufficient evidence of due diligence for equitable
tolling of the deadline. See 8 C.F.R. § 1003.2(c)(2); Avagyan v. Holder, 646 F.3d
672, 679 (9th Cir. 2011) (equitable tolling is available to a petitioner who is
prevented from timely filing a motion to reopen due to deception, fraud, or error,
as long as the petitioner exercises due diligence in discovering such
circumstances).
In light of our disposition, we do not reach Barrera Martinez’s remaining
contentions regarding the alleged ineffective assistance of counsel.
PETITION FOR REVIEW DENIED.
2 16-73998