                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 16 2013

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




                             FOR THE NINTH CIRCUIT



ELVI FRANCISCA REAL,                             No. 11-72306

               Petitioner,                       Agency No. A093-278-161

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

               Respondent.



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

                             Submitted January 15, 2013 **

Before:        SILVERMAN, BEA, and NGUYEN, Circuit Judges.

       Elvi Francisca Real, a native and citizen of Guatemala, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal

from an immigration judge’s (“IJ”) decision denying her motion to reopen removal

proceedings conducted in absentia. Our jurisdiction is governed by 8 U.S.C.


          *
             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).
§ 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 in part and dismiss in part the petition for review.

      The BIA did not abuse its discretion in denying Real’s motion to reopen as

untimely where it was filed one and a half years after the date of her 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 after the date of the removal order), and Real failed to

show the due diligence required for equitable tolling of the filing deadline, see

Avagyan v. Holder, 646 F.3d 672, 679-80 (9th Cir. 2011) (equitable tolling is

available to a petitioner who establishes deception, fraud or error, and exercised

due diligence in discovering such circumstances).

      It follows that the BIA did not violate Real’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).

      In her opening brief, Real fails to raise, and therefore has waived, any

challenge regarding lack of notice of her hearing and statutory ineligibility for

cancellation of removal. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir.

2011) (a petitioner waives an issue by failing to raise it in the opening brief).


                                           2                                        11-72306
      We lack jurisdiction to review Real’s contention that the absence of a

complete transcript of the proceedings before the IJ violated her due process rights

because she failed to raise this contention before the agency and thereby failed to

exhaust her administrative remedies. See Barron v. Ashcroft, 358 F.3d 674, 678

(9th Cir. 2004) (this court lacks jurisdiction to review contentions not raised before

the agency).

      Real’s remaining contentions are unavailing.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                           3                                    11-72306
