FILED
NOT FOR PUBLICATION SEP 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
INES CHAVEZ; MONSERRAT Nos. 08-71325
HURTADO, 08-74838
Petitioners, Agency Nos. A073-896-445
A073-896-446
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted August 23, 2010 **
Before: LEAVY, HAWKINS, and THOMAS, Circuit Judges.
In these consolidated petitions for review, Ines Chavez and Monserrat
Hurtado, seek review of the Board of Immigration Appeals’ (“BIA”) order
dismissing their appeal from an immigration judge’s decision denying their
applications for suspension of deportation, and its order denying their motion to
*
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).
reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial
evidence the agency’s continuous physical presence determination. Canales-
Vargas v. Gonzales, 441 F.3d 739, 742 (9th Cir. 2006). We review de novo claims
of constitutional violations in immigration proceedings and for abuse of discretion
the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.
2003). We deny the petitions for review.
In No. 08-71325, the record does not compel the conclusion that petitioners
met their burden of establishing continuous physical presence where they failed to
provide sufficient evidence supporting their presence from October 19, 1988, to
October 19, 1995. See Singh-Kaur v. INS, 183 F.3d 1147, 1150 (9th Cir. 1999) (a
contrary result is not compelled where there is “[t]he possibility of drawing two
inconsistent conclusions from the evidence”) (internal quotation marks and citation
omitted). Petitioners’ due process claim fails because they cannot demonstrate
prejudice. 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).
In No. 08-74838, the BIA acted within its discretion in denying as untimely
petitioners’ motion to reopen because it was filed more than 90 days after the
BIA’s final removal order, see 8 C.F.R. § 1003.2(c)(2), and petitioners did not
show they were entitled to equitable tolling, see Iturribarria, 321 F.3d at 897-98
2 08-71325
(deadline for filing a motion to reopen may be equitably tolled where a petitioner
acts with due diligence).
Petitioners’ remaining contentions are unavailing.
PETITIONS FOR REVIEW DENIED.
3 08-71325