                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 14 2013

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




                              FOR THE NINTH CIRCUIT



YOVANA VIANEY NOLASCO-                            No. 11-72209
VILLACRE,
                                                  Agency No. A029-561-192
               Petitioner,

  v.                                              MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted February 11, 2013 **

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Yovana Vianey Nolasco-Villacre, a native and citizen of Peru, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to

reopen removal proceedings based on ineffective assistance of counsel. We have




          *
             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).
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 or violate due process in denying

Nolasco-Villacre’s motion to reopen as untimely, where it was filed over ten years

after her order of removal became final, see 8 C.F.R. § 1003.2(c)(2) (motion to

reopen generally must be filed within 90 days of the final order), and

Nolasco-Villacre failed to establish that she 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 she was prevented

from filing because of deception, fraud or error, and exercised due diligence in

discovering such circumstances); see also Lata v. INS, 204 F.3d 1241, 1246 (9th

Cir. 2000) (requiring error and prejudice to prevail on a due process claim).

      PETITION FOR REVIEW DENIED.




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