Erika Tiniguar Xiloj v. Eric Holder, Jr. , 447 F. App'x 866 ( 2011 )

FILED
NOT FOR PUBLICATION AUG 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ERIKA FLORIDALMA TINIGUAR No. 10-71806
XILOJ,
Agency No. A073-919-866
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 11, 2011 **
Before: THOMAS, SILVERMAN, and CLIFTON Circuit Judges.
Erika Floridalma Tiniguar Xiloj, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her
appeal from an immigration judge’s order denying her motion to reopen
deportation proceedings conducted in absentia. We have jurisdiction under 8
*
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).
U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen,
Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny the petition for
review.
The BIA correctly concluded that personal service on Xiloj of the Order to
Show Cause (“OSC”) was valid where there was no statutory requirement that the
OSC be orally translated. See 8 U.S.C. 1252b(a)(3) (1996); Khan v. Ashcroft, 374
F.3d 825, 828-29 (9th Cir. 2004) (notice proper where INS adhered to statutorily
imposed procedural requirements). Xiloj’s contention that she was prejudiced by
the absence of oral notice as was required under former 8 C.F.R. § 242.1(c)(1995)
is not persuasive. See Matter of Hernandez, 21 I. & N. Dec. 224, 227 (BIA 1996);
see also Kohli v. Gonzales, 473 F.3d 1061, 1066-67 (9th Cir. 2007) (petitioner
must demonstrate that he was prejudiced by the agency’s violation of its own
regulation).
The BIA did not abuse its discretion in denying Xiloj’s motion to reopen to
rescind her deportation order because the hearing notice was sent by certified mail
to the address last provided. See Arrieta v. INS, 117 F.3d 429, 431 (9th Cir. 1997)
(per curiam) (hearing notice sent by certified mail to alien’s last known address is
sufficient notice).
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The BIA did not abuse its discretion in denying as untimely Xiloj’s motion
to reopen to apply for relief because she filed it more than 11 years after the final
deportation order, see 8 C.F.R. § 1003.23(b)(1), and she failed to demonstrate
changed country conditions to qualify for the regulatory exception to the time limit
for filing motions to reopen, see Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir.
2008); see also 8 C.F.R. § 1003.23(b)(4)(i).
Xiloji’s remaining contentions are unpersuasive.
PETITION FOR REVIEW DENIED.
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