                                                                            FILED
                              NOT FOR PUBLICATION                           MAR 02 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                               FOR THE NINTH CIRCUIT


MARIA ANTONIETA LUX and SANDY                     No. 11-73592
LISBETTE LUX,
                                                  Agency Nos.        A072-537-479
               Petitioners,                                          A072-537-481

 v.

LORETTA E. LYNCH, Attorney General,               MEMORANDUM*

               Respondent.


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

                              Submitted February 24, 2016**

Before:        LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.

      Maria Antonieta Lux and Sandy Lisbette Lux, natives and citizens of

Guatemala, petition for review of the Board of Immigration Appeals’ order

dismissing their appeal from an immigration judge’s order denying their motion to

reopen removal proceedings conducted in absentia. Our jurisdiction is governed

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

reopen, and review de novo questions of law. Iturribarria v. INS, 321 F.3d 889,

894 (9th Cir. 2003). We deny in part and dismiss in part the petition for review.

      Petitioners conceded that their motion to reopen was untimely, thus the

agency did not abuse its discretion in denying petitioners’ motion to reopen where

they failed to demonstrate the due diligence necessary to warrant equitable tolling

of the filing deadline. See id. at 897 (equitable tolling is available “when a

petitioner is prevented from filing because of deception, fraud, or error, as long as

the petitioner acts with due diligence in discovering the deception, fraud, or

error”); Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (diligence requires

petitioner to take “reasonable steps to investigate [any] suspected fraud” or make

“reasonable efforts to pursue relief”).

      The agency correctly determined that Matter of M-S-, 22 I. & N. Dec. 349

(BIA 1998), does not apply to petitioners, where their untimely motion sought to

reopen proceedings to apply for a form of relief that had been available to them at

their original hearing. See 22 I. & N. Dec. at 356-57 (a motion to reopen seeking

only to apply for relief unavailable to the movant at the time of the hearing is still

subject to the regulatory requirements governing motions to reopen).




                                           2                                     11-73592
      In their opening brief, petitioners fail to raise, and therefore have waived,

any challenge to the agency’s determination that deportability was established

based on the information contained in the Form I-213, which was furnished by

their husband and father at his asylum hearing. See Rizk v. Holder, 629 F.3d 1083,

1091 n.3 (9th Cir. 2011) (issues not raised in an opening brief are waived). We

lack jurisdiction to review petitioners’ unexhausted challenges to the reliability of

the Form I-213 as the basis for the deportability determination, including alleged

discrepancies between the Form I-213 and the request for issuance of the Order to

Show Cause, and their contention that the administrative record lacks a record of

the asylum interview. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010)

(the court lacks jurisdiction to consider legal claims not presented in an alien’s

administrative proceedings).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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