Milagro De La Paz Garcia 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NOT FOR PUBLICATION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
MILAGRO DE LA PAZ GARCIA,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-72766
Agency No. A070-816-513
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.
Milagro de la Paz Garcia, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ order dismissing her appeal from an
immigration judge’s order denying her motion to reopen proceedings conducted in
absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of
FILED
DEC 27 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T O F AP PE ALS

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discretion the denial of a motion to reopen. See Cano-Merida v. INS, 311 F.3d
960, 964 (9th Cir. 2002). We deny in part and dismiss in part the petition for
review.
The agency acted within its discretion in denying as untimely Garcia’s
motion to reopen because the motion was filed more than twelve years after her
final removal order, see 8 C.F.R. § 1003.2(c)(2), and Garcia did not demonstrate
the due diligence required for equitable tolling, see Singh v. Gonzales, 491 F.3d
1090, 1096-97 (9th Cir. 2007). To the extent we have jurisdiction to review the
agency’s decision not to invoke its sua sponte authority, the agency acted within its
broad discretion in declining to reopen.
We lack jurisdiction to review Garcia’s ineffective assistance of counsel
claim against Attorney Quintanilla, because she did not exhaust that claim prior to
bringing this appeal. See Puga v. Chertoff, 488 F.3d 812, 815-16 (9th Cir. 2007).
We decline to consider new evidence that was not part of the administrative
record. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc).
Garcia’s remaining contentions are not persuasive.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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