                                                                            FILED
                             NOT FOR PUBLICATION                             MAY 25 2012

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




                             FOR THE NINTH CIRCUIT



KARLA IVETTE BROOKS, a.k.a. Karla                No. 10-73941
Ivette Gaytan Varela,
                                                 Agency No. A043-485-220
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted May 15, 2012 **

Before:        CANBY, GRABER, and M. SMITH, Circuit Judges.

       Karla Ivette Brooks, a native and citizen of Mexico, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing an appeal

from an immigration judge’s decision denying her motion to reopen and rescind




          *
             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).
her in absentia removal order. We have jurisdiction under 8 U.S.C. § 1252. We

review for substantial evidence the agency’s findings of fact, review for abuse of

discretion the denial of a motion to reopen, and review de novo due process claims.

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 Brooks’ motion to reopen

where she filed the motion more than a year and a half after her final order of

removal, see 8 C.F.R. § 1003.23(b)(4)(iii), and did not establish that she acted with

the due diligence required for equitable tolling, see Socop-Gonzalez v. INS, 272

F.3d 1176, 1193 (9th Cir. 2001) (en banc). It follows that Brooks’ 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).

      The BIA did not abuse its discretion in declining to rescind Brooks’ in

absentia removal order because substantial evidence supports the BIA’s

determination that Brooks was removable due to alien smuggling, see

8 U.S.C. § 1182(a)(6)(E)(I), where her Form I-213 reflects that she “provided some

form of affirmative assistance to the illegally entering alien,” Altamirano v.

Gonzales, 427 F.3d 586, 592 (9th Cir. 2005).

      PETITION FOR REVIEW DENIED.


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