                                                                           FILED
                             NOT FOR PUBLICATION                            APR 16 2010

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




                             FOR THE NINTH CIRCUIT



 JOSE ANGEL ERAZO-RIVAS,                         No. 08-71072

               Petitioner,                       Agency No. A098-989-531

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

               Respondent.



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

                              Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

        Jose Angel Erazo-Rivas, a native and citizen of Guatemala, petitions pro se

for review of the Board of Immigration Appeals’ (“BIA”) decision denying his

motion to reconsider. We have jurisdiction pursuant to 8 U.S.C. § 1252. We



          *
             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).

IH/Research
review for abuse of discretion the denial of a motion to reconsider, Cano-Merida v.

INS, 311 F.3d 960, 964 (9th Cir. 2002), and we deny the petition for review.

        The BIA did not abuse its discretion in construing Erazo-Rivas’s motion,

filed January 15, 2008, as a motion to reconsider. See Mohammed v. Gonzales,

400 F.3d 785, 793 (9th Cir. 2005) (where a petitioner improperly titles a motion to

reopen or reconsider, the BIA should construe the motion based on its underlying

purpose). So construed, the BIA did not abuse its discretion in denying Erazo-

Rivas’s motion to reconsider as untimely. See 8 C.F.R. § 1003.2(b)(2). Erazo-

Rivas’s due process claim therefore fails. See Lata v. INS, 204 F.3d 1241, 1246

(9th Cir. 2000) (requiring error for a due process violation).

        PETITION FOR REVIEW DENIED.




IH/Research                                2                                   07-71072
