Fernando Pavia v. Eric H. Holder Jr., No. 08-73916 (9th Cir. 2011)

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FILED JAN 24 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT FERNANDO PAVIA, No. 08-73916 Petitioner, Agency No. A036-146-701 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 10, 2011 ** Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges. Fernando Pavia, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals order dismissing his appeal from an immigration judge s decision denying his motion to reopen removal proceedings conducted in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. We * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). review for abuse of discretion the denial of a motion to reopen and review de novo claims of due process violations in immigration proceedings. 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 Pavia s motion to reopen as untimely because the motion was filed more than 18 months after the issuance of the May 12, 2006, in absentia order, see 8 C.F.R. § 1003.23(b)(4)(ii), and the evidence submitted with the motion to reopen failed to establish Pavia acted with the due diligence required to warrant tolling of the 180-day filing deadline, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (equitable tolling is available to petitioner who is prevented from filing due to deception, fraud, or error, and exercises due diligence in discovering such circumstances). Pavia s remaining contentions are unavailing. PETITION FOR REVIEW DENIED. 2 08-73916

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