                                                                              FILED
                            NOT FOR PUBLICATION                               DEC 07 2012

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



                             FOR THE NINTH CIRCUIT


MA ISABEL ORTEGA-PEREZ,                          No. 09-73220

              Petitioner,                        Agency No. A075-495-126

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

              Respondent.


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

                            Submitted December 5, 2012**
                                Pasadena, California

Before: BERZON and IKUTA, Circuit Judges, and ZIPPS, District Judge.***

       Ma Isabel Ortega-Perez, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ order dismissing her appeal of an



        *
             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).
        ***
             The Honorable Jennifer G. Zipps, District Judge for the U.S. District
Court for the District of Arizona, sitting by designation.
immigration judge’s denial of her motion to reopen removal proceedings

conducted in absentia based on ineffective assistance of counsel. We have

jurisdiction under 8 U.S.C. § 1252(a)(2)(D) (allowing for judicial review where

motion to reopen contains a constitutional claim or a question of law). We review

the denial of a motion to reopen for abuse of discretion, Singh v. Gonzales, 491

F.3d 1090, 1095 (9th Cir. 2007), and we deny the petition for review.

      The agency did not abuse its discretion in denying Ortega-Perez’s motion to

reopen as untimely because the motion was filed more than nine years after the

issuance of the September 8, 1998 in absentia order, see 8 C.F.R.

§ 1003.23(b)(4)(ii), and Ortega-Perez failed to establish that she acted with the due

diligence required to warrant equitable 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 “because of deception, fraud, or error”

and exercises due diligence in discovering such circumstances).

      PETITION FOR REVIEW DENIED.




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