                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 24 2011

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




                             FOR THE NINTH CIRCUIT



FERNANDO PAVIA,                                  No. 08-73916

               Petitioner,                       Agency No. A036-146-701

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

               Respondent.



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

                             Submitted January 10, 2011 **

Before:        BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.

       Fernando Pavia, a native and citizen of the Philippines, petitions for review

of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s decision denying his motion to reopen removal proceedings

conducted in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. We


          *
             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).
review for abuse of discretion the denial of a motion to reopen and review de novo

claims of due process violations in immigration proceedings. Mohammed v.

Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review.

      The agency did not abuse its discretion in denying Pavia’s motion to reopen

as untimely because the motion was filed more than 18 months after the issuance

of the May 12, 2006, in absentia order, see 8 C.F.R. § 1003.23(b)(4)(ii), and the

evidence submitted with the motion to reopen failed to establish Pavia acted with

the due diligence required to warrant tolling of the 180-day filing deadline, see

Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (equitable tolling is available

to petitioner who is prevented from filing due to deception, fraud, or error, and

exercises due diligence in discovering such circumstances).

      Pavia’s remaining contentions are unavailing.

      PETITION FOR REVIEW DENIED.




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