                                                                             FILED
                            NOT FOR PUBLICATION                                 JAN 28 2015

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



                            FOR THE NINTH CIRCUIT


CHRISTINE AANTJE TREES LUMENO,                  No. 12-73724

              Petitioner,                       Agency No. A000-089-875

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

              Respondent.

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

                      Argued and Submitted October 8, 2014
                               Portland, Oregon

Before: KOZINSKI, FISHER and DAVIS,** Circuit Judges.

      Christine Lumeno petitions this court for review of the Board of

Immigration Appeals’ (BIA) denial of her asylum application as time-barred. We

have jurisdiction under 8 U.S.C. § 1252, and we deny the petition in part and

dismiss in part.


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
        The Honorable Andre M. Davis, Senior Circuit Judge for the U.S. Court
of Appeals for the Fourth Circuit, sitting by designation.
      1. Substantial evidence supports the BIA’s conclusion that the

circumstances related to Lumeno’s failure to file her asylum application within a

reasonable period after the BIA’s dismissal of her husband Feng Chen’s appeal

were intentionally created by Lumeno through her own inaction. See 8 C.F.R. §

1208.4(a)(5).

      The relevant period of time is between August 2006, the date of the BIA’s

dismissal of Chen’s appeal and the final denial of Lumeno’s derivative asylum

application, and February 2008, when Lumeno was placed into removal

proceedings and thus bound by the immigration court’s filing deadlines. See 8

C.F.R. § 208.2(b). Lumeno testified that her husband’s attorney estimated in

August 2005 that the appeal process could take “18-24 months or longer,” but she

alleges she did not learn about the BIA’s denial until her husband was arrested in

February 2008, nearly 30 months after Chen’s appeal was filed. Chen had made

“many” unsuccessful attempts to contact his attorney to learn about the status of

his appeal during its pendency. Lumeno testified that Chen’s last attempt was prior

to September 2007. Chen again received no response from his attorney and, in

Lumeno’s words, “move[d] on to his life.” Even then, Lumeno took no steps to

file her own asylum application until Chen was arrested four months later. The




                                         2
BIA did not err in concluding that Lumeno failed to demonstrate sufficient

diligence to overcome her untimely filing.

      2. We dismiss Lumeno’s claim that she should have received notice of the

denial of her husband’s asylum application as a matter of due process because she

failed to raise it before the BIA. See Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir.

2013).

      PETITION FOR REVIEW DENIED IN PART, DISMISSED IN PART.




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