Pedro Chavez Ychavez v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO CHAVEZ Y CHAVEZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-73563
Agency No. A070-958-510
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2010**
Before: GOODWIN, WALLACE, and W. FLETCHER, Circuit Judges.
Pedro Chavez y Chavez, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his motion to reopen
deportation proceedings conducted in absentia. Our jurisdiction is governed by
FILED
DEC 27 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T O F AP PE ALS

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08-73563 2
8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny in part
and dismiss in part the petition for review.
The agency did not abuse its discretion in denying Chavez’s motion to
reopen as untimely where Chavez filed the motion more than seven years after his
deportation order, see 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1) (motion to reopen based
on exceptional circumstances must be filed within 180 days of the deportation
order), and failed to establish that he acted with the due diligence required for
equitable tolling, see Iturribarria, 321 F.3d at 897 (equitable tolling available to a
petitioner who is prevented from filing due to deception, fraud or error, and
exercises due diligence in discovering such circumstances); cf. Ghahremani v.
Gonzales, 498 F.3d 993, 1000 (9th Cir. 2007) (due diligence shown where
petitioner demonstrated “steadfast pursuit” of his case).
We lack jurisdiction to consider Chavez’s contention that the IJ did not
adequately inform him regarding the remedy for failing to appear because he did
not exhaust this claim before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678
(9th Cir. 2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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