                                                                           FILED
                              NOT FOR PUBLICATION                           JAN 11 2010

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




                              FOR THE NINTH CIRCUIT



EDNA MARIBEL ALVARENGA-                           No. 07-73357
VELASQUEZ,
                                                  Agency No. A070-956-179
               Petitioner,

  v.                                              MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

               Respondent.



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

                             Submitted December 15, 2009 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

       Edna Maribel Alvarenga-Velasquez, a native and citizen of Honduras,

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

her motion to reopen deportation proceedings based on ineffective assistance of


          *
             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).

                                           1
counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse

of discretion the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889,

894 (9th Cir. 2003). We deny the petition for review.

         The BIA did not abuse its discretion in denying Alvargena-Velasquez’s

motion to reopen as untimely because it was filed more than 10 years after the

BIA’s final order, see 8 C.F.R. § 1003.2(c)(2), and Alvargena-Velasquez failed to

establish that she exercised due diligence required to warrant tolling of the filing

deadline. See id. at 897 (equitable tolling is available to a petitioner who

establishes deception, fraud, or error, and exercised due diligence in discovering

such circumstances), see also Singh v. Gonzales, 491 F.3d 1090, 1095-96 (9th Cir.

2007).

         To the extent Alvargena-Velasquez contends that the BIA failed to consider

some or all of the evidence she submitted with the motion to reopen, she has not

overcome the presumption that the BIA did review the record. See Ranco-Rosendo

v. Gonzalez, 454 F.3d 965, 966 (9th Cir. 2006).

         PETITION FOR REVIEW DENIED.




RA/Research                                2                              07-73357
RA/Research   3   07-73357
