Cruz-Herrera v. Holder

FILED
NOT FOR PUBLICATION DEC 07 2009

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

FOR THE NINTH CIRCUIT

SILVIA CRUZ-HERRERA, No. 07-71135

Petitioner, Agency No. A075-481-526

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

Respondent.

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

Submitted November 17, 2009 **

Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

Silvia Cruz-Herrera, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen

based on ineffective assistance of counsel. We have jurisdiction pursuant to

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

JTK/Research
8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to

reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny the

petition for review.

The BIA did not abuse its discretion in denying Cruz-Herrera’s motion to

reopen as untimely because she filed the motion more than eighteen months after

the BIA issued its final order, and she failed to establish the due diligence required

to warrant tolling of the motions deadline. See 8 C.F.R. § 1003.2(c)(2); Valeriano

v. Gonzales, 474 F.3d 669, 674-75 (9th Cir. 2007) (no due diligence shown where

petitioner’s attorney delayed filing in order to await receipt of information

unnecessary for the filing); see also Socop-Gonzalez v. INS, 272 F.3d 1176, 1193-

94 (9th Cir. 2001) (tolling limitations period until alien able to obtain “vital

information bearing on the existence of a claim”). It follows that the BIA did not

violate due process by denying Cruz-Herrera’s motion to reopen. See Lata v. INS,

204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error for a due process violation).

PETITION FOR REVIEW DENIED.

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