Laura Hernandez-Guevara v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAR 07 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LAURA DE JESUS HERNANDEZ- No. 09-70823
GUEVARA,
Agency No. A076-362-890
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Laura De Jesus Hernandez-Guevara, a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’ order dismissing her
appeal from an immigration judge’s decision denying her motion to reopen
removal proceedings conducted in absentia. We have jurisdiction under 8 U.S.C.
*
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).
§ 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), and we deny the petition for
review.
The agency did not abuse its discretion in denying Hernandez-Guevara’s
motion to reopen as untimely where Hernandez-Guevara filed the motion more
than nine years after the February 10, 1998, removal order, see 8 C.F.R.
§ 1003.23(b)(4)(iii)(A)(1) (motion to reopen based on exceptional circumstances
must be filed within 180 days of the deportation order), and failed to establish that
she acted with the due diligence required for equitable tolling, see Iturribarria, 321
F.3d at 897 (equitable tolling available to a petitioner who is prevented from filing
due to deception, fraud or error, and exercises due diligence in discovering such
circumstances); cf. Ghahremani v. Gonzales, 498 F.3d 993, 1000 (9th Cir. 2007)
(due diligence shown where petitioner demonstrated “steadfast pursuit” of his
case). Hernandez-Guevara received proper notice of her removal hearing because
she was personally served a Notice to Appear. See 8 U.S.C. § 1229(a);
Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1156 n.4 (9th Cir. 2004) (“Current law
does not require that the Notice to Appear . . . be in any language other than
English.”).
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The agency also did not abuse its discretion in denying Hernandez-
Guevara’s motion to reopen based on changed country conditions, because
Hernandez-Guevara failed to establish prima facie eligibility for asylum. See
Konstantinova v. INS, 195 F.3d 528, 530 (9th Cir. 1999) (upholding denial of
motion to reopen where petitioner introduced evidence that was too general in
nature to demonstrate a well-founded fear of persecution).
PETITION FOR REVIEW DENIED.
3 09-70823