                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                      MAR 16 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

 GEOVANA ANTONIA TOLEDO,                          No.   12-70980

                  Petitioner,                     Agency No. A070-814-967

   v.
                                                  MEMORANDUM *
 JEFFERSON B. SESSIONS III, Attorney
 General,

                  Respondent.

                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                                Submitted March 8, 2017**

Before:       LEAVY, W. FLETCHER, and OWENS, Circuit Judges.

        Geovana Antonia Toledo, a native and citizen of Guatemala, petitions pro se

for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her

appeal from an immigration judge’s order denying her motion to reopen removal

proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review for abuse of discretion the denial of a motion to reopen, and review de

novo claims of due process violations. Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th

Cir. 2004). We deny the petition for review.

      The agency did not abuse its discretion in denying Toledo’s motion to

reopen as untimely, where it was filed 12 years after her in absentia order of

removal, see 8 U.S.C. § 1229a(b)(5)(C), and she failed to establish the due

diligence required for equitable tolling of the filing deadline, see Avagyan v.

Holder, 646 F.3d 672, 679 (9th Cir. 2011), and failed to establish materially

changed country conditions in Guatemala to qualify for the regulatory exception to

the filing deadline, see 8 C.F.R. § 1003.23(b)(4)(i); Toufighi v. Mukasey, 538 F.3d

988, 996 (9th Cir. 2008) (to prevail on a motion to reopen based on changed

country conditions, applicant must produce material evidence of changed country

conditions that establishes prima facie eligibility for the relief sought).

      Contrary to Toledo’s contention, the BIA’s decision in Matter of M-S-, 22 I.

& N. Dec. 349 (BIA 1998), concerning aliens who do not receive oral warnings of

the consequences of failing to appear, does not provide an independent basis for

untimely reopening of her removal proceedings to apply for relief from removal.

See id. at 357 (filing deadline applies to motions to reopen based on lack of oral

notice). Accordingly, Toledo’s due process claim fails. See Lata v. INS, 204 F.3d

1241, 1246 (9th Cir. 2000) (to prevail on a due process challenge, an alien must


                                           2                                      12-70980
show error and prejudice).

      In light of this disposition, we do not reach Toledo’s remaining contentions

regarding exceptional circumstances or eligibility for relief under the Nicaraguan

Adjustment and Central American Relief Act of 1997.

      PETITION FOR REVIEW DENIED.




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