FILED
NOT FOR PUBLICATION DEC 09 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARGARITA GARCILAZO-CUPA, No. 05-75584
Petitioner, Agency No. A078-086-000
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 7, 2009 **
Pasadena, California
Before: HALL, THOMPSON and SILVERMAN, Circuit Judges.
Margarita Garcilazo-Cupa petitions for review of the Board of Immigration
Appeals’s denial as untimely of her motion to reopen her May 12, 1999 in absentia
order of removal. We review for an abuse of discretion, Perez v. Mukasey, 516
*
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).
F.3d 770, 773 (9th Cir. 2008), and dismiss in part and deny in part the petitions for
review.
We have exclusive jurisdiction over the petitions for review pursuant to 8
U.S.C. § 1252. Martinez-Rosas v. Gonzales, 424 F.3d 926, 928-29 (9th Cir. 2005);
Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052-53 (9th Cir. 2005). In
transferring this case to us, the Third Circuit properly treated the habeas petition
filed in the district court in Pennsylvania as a petition for review requiring
consideration by a court of appeals. Id.
Petitioner was personally served with her notice to appear and
acknowledged in writing that she was provided with written notice and oral notice
in Spanish of the time and place of her hearing and the consequences of not
attending her hearing. Therefore, she could obtain reopening of the in absentia
removal order only if exceptional circumstances prevented her from appearing at
her hearing and she filed the motion to reopen within 180 days of the 1999 order of
removal. 8 U.S.C. § 1229a(b)(5)(C)(i); 8 C.F.R. § 1003.23(b)(4)(ii).
Petitioner filed her motion to reopen for exceptional circumstances over
four years after the Immigration Judge ordered her removed, well beyond the 180-
day deadline to reopen for exceptional circumstances. Id. The BIA did not abuse
its discretion by finding the motion untimely, and for that reason we deny her
petition for review.
We lack jurisdiction to consider Rojas’s equitable tolling claim because she
did not assert the claim to the BIA. Serrano v. Gonzales, 469 F.3d 1317, 1319 (9th
Cir. 2006). That claim is dismissed. Since the timeliness issue disposes of the
petitions for review, we do not reach the additional claims.
PETITIONS FOR REVIEW DISMISSED IN PART AND DENIED IN
PART.