De La Torre Gaspar v. Holder

MEMORANDUM

Gabriela De La Torre Gaspar, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribar-ria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and de novo questions of law, Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). We deny the petition for review.

The BIA did not abuse its discretion in denying De La Torre Gaspar’s motion to reopen because it was untimely and because it did not establish prima facie eligibility for relief. See 8 C.F.R. § 1003.2 (c)(2) (motion to reopen generally must be filed within 90 days of the final order); De Martinez v. Ashcroft, 374 F.3d 759, 763-64 (9th Cir.2004) (the BIA may properly deny motion to reopen filed after expiration of voluntary departure period).

Contrary to De La Torre Gaspar’s contention, the BIA did not abuse its discretion in denying her unsupported claim for equitable tolling of the time either to voluntarily depart or to file a motion to reopen. See In re Zmijewska, 24 I. & N. Dec. 87, 92 (BIA 2007) (recognizing neither BIA nor…