                              NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                              FOR THE NINTH CIRCUIT                         NOV 16 2012

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

SIGFREDO ALEXANDER BONILA-                        No. 11-72396
CORTEZ,
                                                  Agency No. A078-981-634
               Petitioner,

  v.                                              MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted November 13, 2012 **

Before:        CANBY, TROTT, and W. FLETCHER, Circuit Judges.

       Sigfredo Alexander Bonila-Cortez, a native and citizen of El Salvador,

petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing his appeal from an immigration judge’s (“IJ”) decision denying his




          *
             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).
motion to reopen removal proceedings conducted in absentia. We have jurisdiction

under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to

reopen, and review de novo constitutional claims. Mohammed v. Gonzales, 400

F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review.

      The BIA did not abuse its discretion in denying Bonila-Cortez’s motion to

reopen as untimely where it was filed nearly four and a half years after his order of

removal, see 8 C.F.R. § 1003.23(b)(4)(ii) (an alien seeking to reopen and rescind

an in absentia removal order based on exceptional circumstances must file the

motion within 180 days), and Bonila-Cortez failed to establish that he qualified for

equitable tolling of the filing deadline, see Avagyan v. Holder, 646 F.3d 672, 678-

80 (9th Cir. 2011) (equitable tolling is available to a petitioner who establishes that

he suffered from deception, fraud or error, and exercised due diligence in

discovering such circumstances).

      It follows that the BIA did not violate Bonila-Cortez’s due process rights by

denying the motion. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)

(requiring error and prejudice to prevail on a due process claim); see also

Valencia-Fragoso v. INS, 321 F.3d 1204, 1206 (9th Cir. 2003) (per curiam) (“It is

well settled that if an alien is provided proper written notice of a removal hearing




                                           2                                     11-72396
and fails to attend, the immigration judge is required to enter an in absentia order

of removal.” (internal citation omitted)).

      Bonila-Cortez’s contention that the IJ’s decision violated his due process

rights because it was inadequate is unsupported and unavailing. See Najmabadi v.

Holder, 597 F.3d 983, 990-91 (9th Cir. 2010).

      In light of our disposition, we need not address Bonila-Cortez’s remaining

contentions.

      PETITION FOR REVIEW DENIED.




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