Opinion
No. 10-71572.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
July 22, 2011.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A070-964-191.
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
German Rolando Ixcoy, 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 deportation proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and review de novo questions of law. 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 Ixcoy's motion to reopen for failure to show lack of notice because the notice of hearing was sent by certified mail to Ixcoy's last known address and the receipt was signed. See Arrieta v. INS, 117 F.3d 429, 431 (9th Cir. 1997).
The agency also did not abuse its discretion in denying Ixcoy's motion as untimely where the motion was filed more than twelve years after his deportation order became final, see 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1), and Ixcoy failed to establish grounds for equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (equitable tolling available "when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence"); see also Fajardo v. INS, 300 F.3d 1018, 1022 (9th Cir. 2002). It follows that Ixcoy's due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice for a petitioner to prevail on a due process claim).
PETITION FOR REVIEW DENIED.