Aida Jacinto Hernandez 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NOT FOR PUBLICATION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
AIDA JACINTO HERNANDEZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 12-71140
Agency No. A095-306-643
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 14, 2013**
Before: SCHROEDER, GRABER, and PAEZ, Circuit Judges.
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
FILED
AUG 19 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

12-71140 2
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)(1)-(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) (an alien must show error and prejudice to
prevail on a due process claim).
We lack jurisdiction to review the BIA’s decision not to exercise its sua
sponte authority to reopen proceedings. See Mejia-Hernandez v. Holder, 633 F.3d
818, 823-24 (9th Cir. 2011).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

-- 2 of 2 --