Eliosa Bhagwani v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION OCT 28 2010

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

FOR THE NINTH CIRCUIT

ELOISA DE LA CRUZ BHAGWANI, No. 08-72883

Petitioner, Agency No. A070-942-155

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

Respondent.

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

Submitted October 19, 2010 **

Before: O’SCANNLAIN, LEAVY, and TALLMAN, Circuit Judges.

Eloisa De La Cruz Bhagwani, a native and citizen of the Philippines,

petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying

her motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C.

§ 1252. We review for abuse of discretion the denial of a motion to reopen, and

*
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).
review de novo constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-

92 (9th Cir. 2005). We deny the petition for review.

The BIA did not abuse its discretion in denying Bhagwani’s motion to

reopen as untimely because it was filed nearly twelve years after the BIA’s final

order of removal, see 8 C.F.R. § 1003.2(c)(2) (motion to reopen must be filed

within ninety days of final order of removal), and Bhagwani did not show she

acted with the due diligence required for equitable tolling, see Iturribarria, 321

F.3d 889, 897 (9th Cir. 2003) (deadline for filing motion to reopen can be

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

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

process claim therefore fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)

(requiring error to prevail on a due process challenge).

Bhagwani’s motion to stay her removal is denied.

PETITION FOR REVIEW DENIED.

2 08-72883