                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 22 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



GERMAN ROLANDO IXCOY,                            No. 10-71572

               Petitioner,                       Agency No. A070-964-191

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       German Rolando Ixcoy, 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 decision denying his motion to reopen deportation

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 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).
We review for abuse of discretion the denial of a motion to reopen, and review de

novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.

2005). We deny the petition for review.

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

for failure to show lack of notice because the notice of hearing was sent by

certified mail to Ixcoy’s last known address and the receipt was signed. See

Arrieta v. INS, 117 F.3d 429, 431 (9th Cir. 1997).

      The agency also did not abuse its discretion in denying Ixcoy’s motion as

untimely where the motion was filed more than twelve years after his deportation

order became final, see 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1), and Ixcoy failed to

establish grounds for equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897

(9th Cir. 2003) (equitable tolling available “when a petitioner is prevented from

filing because of deception, fraud, or error, as long as the petitioner acts with due

diligence”); see also Fajardo v. INS, 300 F.3d 1018, 1022 (9th Cir. 2002). It

follows that Ixcoy’s due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246

(9th Cir. 2000) (requiring error and prejudice for a petitioner to prevail on a due

process claim).

      PETITION FOR REVIEW DENIED.




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