Gonzalez De Araiza v. Holder

FILED
NOT FOR PUBLICATION SEP 01 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

YOLANDA GONZALEZ DE ARAIZA, No. 07-74762

Petitioner, Agency No. A075-487-636

v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted August 10, 2010 **

Before: LEAVY, HAWKINS, and IKUTA, Circuit Judges.

Yolanda Gonzalez de Araiza, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to

reopen proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review

*
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).
the denial of a motion to reopen for abuse of discretion. See Iturribarria v. INS,

321 F.3d 889, 894 (9th Cir. 2003). We deny in part and dismiss in part the petition

for review.

The BIA did not abuse its discretion in denying Gonzalez de Araiza’s

motion to reopen because the motion was filed more than five years after the BIA’s

February 19, 2002, order, see 8 C.F.R. § 1003.2(c)(2) (motion to reopen must

generally be filed within 90 days of the final order), and Gonzalez de Araiza failed

to establish that she acted with the due diligence required for equitable tolling, see

Iturribarria, 321 F.3d at 897 (deadline for filing a motion to reopen can be

equitably tolled “when a petitioner is prevented from filing because of deception,

fraud, or error, as long as the petitioner acts with due diligence”).

We lack jurisdiction to review Gonzalez de Araiza’s contentions that the

BIA erred in severing her case from her husband’s case and that she did not receive

notice of the dismissal of her prior petition for review because she did not exhaust

those contentions before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78

(9th Cir. 2004) (this court lacks jurisdiction to review contentions not raised before

the agency).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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