Leo v. Mukasey

MEMORANDUM *** Suwy Leo, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen to adjust status. To the extent we have jurisdiction, it is governed by 8 U.S.C. § 1252 . We review for abuse of discretion the denial of a motion to reopen, de Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir.2004). We deny in part and dismiss in part the petition for review. The BIA did not abuse its discretion in denying Leo’s motion to reopen as untimely. See 8 C.F.R. § 1003.2 (c)(2) (motions to reopen must generally be filed within ninety days of the final agency decision). We reject Leo’s due process claim because she has not shown error. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (“To prevail on a due process challenge ... [a petitioner] must show error and substantial prejudice.”). We lack jurisdiction to review Leo’s contention that the filing deadline should have been equitably tolled, because she failed to raise this argument before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (holding that exhaustion is mandatory and jurisdictional). PETITION FOR REVIEW DENIED in part and DISMISSED in part. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.