FILED
NOT FOR PUBLICATION JAN 24 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FERNANDO PAVIA, No. 08-73916
Petitioner, Agency No. A036-146-701
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 10, 2011 **
Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.
Fernando Pavia, a native and citizen of the Philippines, petitions for review
of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his motion to reopen removal proceedings
conducted in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. We
*
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 for abuse of discretion the denial of a motion to reopen and review de novo
claims of due process violations in immigration proceedings. 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 Pavia’s motion to reopen
as untimely because the motion was filed more than 18 months after the issuance
of the May 12, 2006, 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 Pavia 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 is available
to petitioner who is prevented from filing due to deception, fraud, or error, and
exercises due diligence in discovering such circumstances).
Pavia’s remaining contentions are unavailing.
PETITION FOR REVIEW DENIED.
2 08-73916