Marisela NUNEZ, Petitioner, v. William P. BARR, Attorney General, Respondent.
Decided: May 13, 2020
Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.
Floyd J. Fernandez, Attorney, Pacific Legal & Consulting, Santa Monica, CA, for Petitioner Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, Justin Robert Markel, Trial Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent
Marisela Nunez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen and review de novo claims of due 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 BIA did not abuse its discretion in denying Nunez’s untimely motion to reopen for failing to demonstrate she acted with the due diligence required for equitable tolling. See 8 U.S.C. § 1229a(c)(7)(C)(i); see also Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (due diligence requires that petitioner took reasonable steps to investigate prior counsel’s suspected error, or, if petitioner was ignorant of counsel’s shortcomings, made reasonable efforts to pursue relief).
We lack jurisdiction to review the BIA’s denial of sua sponte reopening, where Nunez has not raised a legal or constitutional error. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).
Nunez’s contention that the BIA violated her right to due process fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and substantial prejudice to prevail on a due process claim).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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