FILED
NOT FOR PUBLICATION MAR 13 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESMERALDA CONSUELO PELAEZ, No. 12-73525
Petitioner, Agency No. A070-931-951
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 10, 2014**
Before: PREGERSON, LEAVY, and MURGUIA, Circuit Judges.
Esmeralda Consuelo Pelaez, a native and citizen of Guatemala, petitions pro
se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing an
immigration judge’s denial of her motion to reopen removal proceedings
conducted in absentia. Our jurisdiction is governed by 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. Sembiring v.
Gonzales, 499 F.3d 981, 985 (9th Cir. 2007). We deny in part and dismiss in part
the petition for review.
The agency did not abuse its discretion in denying Pelaez’s motion to reopen
where the hearing notice was sent by regular mail to the address last provided to
the immigration court, and she failed to rebut the presumption of effective service.
See Popa v. Holder, 571 F.3d 890, 897-98 (9th Cir. 2009) (“The government
satisfies notice requirements ‘by mailing notice of the hearing to an alien at the
address last provided to the INS.’”); Sembiring, 499 F.3d at 986 (describing factors
relevant to overcome presumption of effective service sent by regular mail).
The BIA did not abuse its discretion in denying Pelaez’s motion to reopen as
untimely where it was filed almost two years after her removal order became final,
see 8 U.S.C. § 1229a(b)(5)(C)(i) (applicant has 180 days to file a motion to reopen
to rescind the in absentia order if the applicant can show that she failed to appear
for the hearing due to exceptional circumstances), and Pelaez failed to show the
due diligence necessary for equitable tolling of the filing deadline, see Avagyan v.
Holder, 646 F.3d 672, 679 (9th Cir. 2011) (equitable tolling of the filing deadline
is available where petitioner establishes that he was prevented from filing because
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of deception, fraud or error, and acted with due diligence in discovering such
circumstances).
We lack jurisdiction to consider Pelaez’s contention that her case warrants a
favorable exercise of prosecutorial discretion. See Vilchiz-Soto v. Holder, 688 F.3d
642, 644 (9th Cir. 2012) (order).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 12-73525