FILED
NOT FOR PUBLICATION SEP 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LUISA DELEON-GRAMAJO, No. 08-72778
Petitioner, Agency No. A070-347-322
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMTIH, Circuit Judges.
Luisa Deleon-Gramajo, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ order dismissing her appeal from an
immigration judge’s (“IJ”) decision denying her motion to reopen deportation
proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of
*
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).
discretion the denial of a motion to reopen, and de novo questions of law and
claims of due process violations. 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 Deleon-Gramajo’s
motion as untimely because it was filed almost 17 years after the final
administrative order, see 8 C.F.R. § 1003.23(b)(1), and Deleon-Gramajo failed to
establish she acted with the due diligence required for equitable tolling of the filing
deadline, see Iturribarria, 321 F.3d 889, 897 (9th Cir. 2003) (equitable tolling is
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
established where petitioner demonstrates “steadfast pursuit” of her case). We
therefore do not reach Deleon-Gramajo’s contentions related to her former
counsel’s alleged ineffective assistance.
The IJ properly determined that Deleon-Gramajo abandoned her application
for asylum because it was not filed by the IJ’s August 18, 1990, deadline. See 8
C.F.R. § 1003.31(c) (IJ may set filing deadlines and deem waived an application
not filed by the deadline). It follows therefore that Deleon-Gramajo’s due process
2 08-72778
rights were not violated. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(requiring error for a petitioner to prevail on a due process claim).
PETITION FOR REVIEW DENIED.
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