Elvi Real v. Eric Holder, Jr.

MEMORANDUM

Elvi Francisca Real, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her motion to reopen removal proceedings conducted in absentia. 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 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 Real’s motion to reopen as untimely where it was filed one and a half years after the date of her order of removal, see 8 C.F.R. § 1003.23 (b)(4)(ii) (an alien seeking to reopen and rescind an in absen-tia removal order based on exceptional circumstances must file the motion within 180 days after the date of the removal order), and Real failed to show the due diligence required for equitable tolling of the filing deadline, see Avagyan v. Holder, 646 F.3d 672, 679-80 (9th Cir.2011) (equitable tolling is available to a petitioner who establishes deception, fraud or error, and…