                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 20 2010

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




                             FOR THE NINTH CIRCUIT



 GABRIELA DE LA TORRE GASPAR,                    No. 07-72364

               Petitioner,                       Agency No. A097-363-006

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

               Respondent.



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

                             Submitted January 11, 2010 **

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Gabriela De La Torre Gaspar, a native and citizen of Mexico, petitions for

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

reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse 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).

NHY/Research
discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894

(9th Cir. 2003), and de novo questions of law, Ram v. INS, 243 F.3d 510, 516 (9th

Cir. 2001). We deny the petition for review.

       The BIA did not abuse its discretion in denying De La Torre Gaspar’s

motion to reopen because it was untimely and because it did not establish prima

facie eligibility for relief. See 8 C.F.R. § 1003.2(c)(2) (motion to reopen generally

must be filed within 90 days of the final order); De Martinez v. Ashcroft, 374 F.3d

759, 763-64 (9th Cir. 2004) (the BIA may properly deny motion to reopen filed

after expiration of voluntary departure period).

       Contrary to De La Torre Gaspar’s contention, the BIA did not abuse its

discretion in denying her unsupported claim for equitable tolling of the time either

to voluntarily depart or to file a motion to reopen. See In re Zmijewska, 24 I. & N.

Dec. 87, 92 (BIA 2007) (recognizing neither BIA nor courts have authority to

create equitable exceptions to penalty provisions for failure to depart voluntarily);

Iturribarria, 321 F.3d at 897-98 (equitable tolling available if petitioner establishes

due diligence in discovering deception, fraud or error that prevented timely filing a

motion to reopen). Petitioner’s due process claim therefore fails. See Lata v. INS,

204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process

challenge).


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       In light of our disposition, we need not reach Petitioner’s remaining

contentions.

       PETITION FOR REVIEW DENIED.




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