FILED
NOT FOR PUBLICATION JUL 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARGARITA DOMINGUEZ No. 08-70707
CALDERON,
Agency No. A097-356-959
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 29, 2010 **
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Margarita Dominguez Calderon, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal
from an immigration judge’s decision denying her motion to reopen removal
proceedings conducted in absentia. Our jurisdiction is governed by 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 and de
novo claims of due process violations in immigration proceedings, Mohammed v.
Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005), and we deny in part and dismiss
in part the petition for review.
The agency did not abuse its discretion in denying Dominguez Calderon’s
motion to reopen as untimely because the motion was filed more than three years
after the issuance of the December 30, 2003, in absentia order, see 8 C.F.R.
§ 1003.23(b)(4)(ii), and the evidence submitted with the motion to reopen failed to
establish that Dominguez Calderon acted with the due diligence required to
warrant tolling of the 180-day filing deadline, see Iturribarria v. INS, 321 F.3d
889, 897 (9th Cir. 2003) (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).
We lack jurisdiction to review Dominguez Calderon’s contentions that she is
entitled to voluntary departure and that her case should be held in abeyance,
because she failed to exhaust these issues before the BIA. See Barron v. Ashcroft,
358 F.3d 674, 678 (9th Cir. 2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 08-70707