FILED
NOT FOR PUBLICATION DEC 23 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PERCI OBDULIO LEMUS, No. 06-73808
Petitioner, Agency No. A073-909-795
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Perci Obdulio Lemus, a native and citizen of Guatemala, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his motion to reopen. Our jurisdiction is
*
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).
KY/Research
governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a
motion to reopen, and review de novo due claims of process violations.
Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny in part and
dismiss in part the petition for review.
The agency did not abuse its discretion in denying Lemus’ motion to reopen
as untimely because the motion was filed more than 10 years after the final order
of deportation, see 8 C.F.R. § 1003.23(b)(1), and Lemus failed to demonstrate that
he acted with the due diligence required for equitable tolling, see Iturribarria, 321
F.3d at 897 (deadline for filing motion to reopen can be equitably tolled when
petitioner acts with due diligence). Lemus’ contention that the denial of his motion
to reopen violated due process therefore fails. See Lata v. INS, 204 F.3d 1241,
1246 (9th Cir. 2000) (requiring error for due process violation).
Lemus’ contention that the BIA violated his due process rights by refusing
to accept his late-filed brief fails because the BIA has discretion to reject an
untimely brief. See 8 C.F.R. § 1003.3(c)(1) (BIA has discretion, upon written
motion, to extend the time period for filing a brief). Even assuming error, Lemus
has failed to demonstrate prejudice. See Lata, 204 F.3d at 1246 (requiring
prejudice to prevail on a due process challenge).
KY/Research 2 06-73808
Lemus’ contention that the BIA violated due process by failing to provide a
transcript fails because he has not shown prejudice. See id.
To the extent Lemus contends that he received inadequate notice of his duty
to voluntary depart, this court lacks jurisdiction to review the claim because it was
not raised before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004).
In light of our disposition, we do not reach Lemus’ remaining contentions.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
KY/Research 3 06-73808