German Ixcoy v. Eric Holder, Jr. ( 2011 )

FILED
NOT FOR PUBLICATION JUL 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GERMAN ROLANDO IXCOY, No. 10-71572
Petitioner, Agency No. A070-964-191
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
German Rolando Ixcoy, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his motion to reopen deportation
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 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).
We review for abuse of discretion the denial of a motion to reopen, and review de
novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.
2005). We deny the petition for review.
The agency did not abuse its discretion in denying Ixcoy’s motion to reopen
for failure to show lack of notice because the notice of hearing was sent by
certified mail to Ixcoy’s last known address and the receipt was signed. See
Arrieta v. INS, 117 F.3d 429, 431 (9th Cir. 1997).
The agency also did not abuse its discretion in denying Ixcoy’s motion as
untimely where the motion was filed more than twelve years after his deportation
order became final, see 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1), and Ixcoy failed to
establish grounds for equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897
(9th Cir. 2003) (equitable tolling available “when a petitioner is prevented from
filing because of deception, fraud, or error, as long as the petitioner acts with due
diligence”); see also Fajardo v. INS, 300 F.3d 1018, 1022 (9th Cir. 2002). It
follows that Ixcoy’s due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246
(9th Cir. 2000) (requiring error and prejudice for a petitioner to prevail on a due
process claim).
PETITION FOR REVIEW DENIED.
2 10-71572