MARIA ANTONIETA LUX and SANDY LISBETTE LUX v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA ANTONIETA LUX and SANDY
LISBETTE LUX,
Petitioners,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 11-73592
Agency Nos. A072-537-479
A072-537-481
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 24, 2016**
Before: LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.
Maria Antonieta Lux and Sandy Lisbette Lux, natives and citizens of
Guatemala, petition for review of the Board of Immigration Appeals’ order
dismissing their appeal from an immigration judge’s order denying their motion to
reopen removal proceedings conducted in absentia. Our jurisdiction is governed
FILED
MAR 02 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
reopen, and review de novo questions of law. Iturribarria v. INS, 321 F.3d 889,
894 (9th Cir. 2003). We deny in part and dismiss in part the petition for review.
Petitioners conceded that their motion to reopen was untimely, thus the
agency did not abuse its discretion in denying petitioners’ motion to reopen where
they failed to demonstrate the due diligence necessary to warrant equitable tolling
of the filing deadline. See id. at 897 (equitable tolling is available “when a
petitioner is prevented from filing because of deception, fraud, or error, as long as
the petitioner acts with due diligence in discovering the deception, fraud, or
error”); Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (diligence requires
petitioner to take “reasonable steps to investigate [any] suspected fraud” or make
“reasonable efforts to pursue relief”).
The agency correctly determined that Matter of M-S-, 22 I. & N. Dec. 349
(BIA 1998), does not apply to petitioners, where their untimely motion sought to
reopen proceedings to apply for a form of relief that had been available to them at
their original hearing. See 22 I. & N. Dec. at 356-57 (a motion to reopen seeking
only to apply for relief unavailable to the movant at the time of the hearing is still
subject to the regulatory requirements governing motions to reopen).
11-73592 2

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In their opening brief, petitioners fail to raise, and therefore have waived,
any challenge to the agency’s determination that deportability was established
based on the information contained in the Form I-213, which was furnished by
their husband and father at his asylum hearing. See Rizk v. Holder, 629 F.3d 1083,
1091 n.3 (9th Cir. 2011) (issues not raised in an opening brief are waived). We
lack jurisdiction to review petitioners’ unexhausted challenges to the reliability of
the Form I-213 as the basis for the deportability determination, including alleged
discrepancies between the Form I-213 and the request for issuance of the Order to
Show Cause, and their contention that the administrative record lacks a record of
the asylum interview. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010)
(the court lacks jurisdiction to consider legal claims not presented in an alien’s
administrative proceedings).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
11-73592 3

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