Aida Jacinto Hernandez v. Eric Holder, Jr.

MEMORANDUM

Aida Jacinto Hernandez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen removal proceedings. 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 questions of law, including constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying Jacinto Hernandez’s motion to reopen as untimely, where the motion was filed five years after proper notice of the final order of removal, and Jacinto Hernandez did not demonstrate grounds for any exception to the filing deadline. See 8 C.F.R. §§ 1003.2 (c)(l)-(2), 1003.38(e); see also Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir.2007) (the BIA fulfills its statutory duty of service and complies with the federal regulations by mailing its decision to petitioner’s address of record). It follows that Jacinto Hernandez’s due process claim, which rests entirely on the failure to reopen, fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000)…