NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUCIA GUADALUPE OSORIO DE 

CORDOVA,

Petitioner,

 v.

LORETTA E. LYNCH, Attorney General,

Respondent.

No. 14-72116

Agency No. A074-809-079

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted October 25, 2016**

Before: LEAVY, SILVERMAN, and GRABER, Circuit Judges.

Lucia Guadalupe Osorio De Cordova, 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 removal proceedings conducted in absentia, and denying her motion to 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

NOV 3 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 14-72116 

remand. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of 

discretion the denial of a motion to reopen or remand, and review de novo 

constitutional claims. Hernandez-Velasquez v. Holder, 611 F.3d 1073, 1077 (9th 

Cir. 2010); Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062 (9th Cir. 2008). We 

deny in part and dismiss in part the petition for review.

The agency did not abuse its discretion in denying the motion to reopen

based on lack of notice, where the record shows notice of the hearing was served 

on Osorio De Cordova’s attorney of record. See 8 C.F.R. § 1003.23(b)(4)(ii) (a 

motion to reopen to rescind an in absentia deportation order may be filed at any 

time if the alien demonstrates that he or she did not receive notice of the hearing); 

8 C.F.R. § 1292.5(a) (permitting notice on alien’s counsel of record); Garcia v. 

INS, 222 F.3d 1208, 1209 (9th Cir. 2000) (notice to the attorney of record 

constitutes notice to the alien).

The BIA did not abuse its discretion or violate due process in denying the 

motion to remand as untimely, where it was filed more than 10 years after the in 

absentia removal order, and Osorio De Cordova failed to establish the diligence 

necessary for equitable tolling of the filing deadline based on ineffective assistance 

of counsel. See 8 C.F.R. § 1003.23(b)(4)(ii); Avagyan v. Holder, 646 F.3d 672, 
3 14-72116 

679 (9th Cir. 2011) (equitable tolling is available to an alien who is prevented from 

timely filing a motion to reopen due to “deception, fraud, or error, as long as the 

petitioner acts with due diligence in discovering the deception, fraud, or error”); 

Popa v. Holder, 571 F.3d 890, 897 (9th Cir. 2009) (“Due process is satisfied if 

service is conducted in a manner reasonably calculated to ensure that notice 

reaches the alien.” (internal citation and quotation marks omitted)).

We lack jurisdiction to review the BIA’s discretionary decision not to reopen 

proceedings sua sponte. See Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24 

(9th Cir. 2011); cf. Bonilla v. Lynch, No. 12-73853, 2016 WL 6127064, at *11 (9th 

Cir. October 20, 2016).

In light of the equitable tolling determination, the BIA did not err in 

declining to address the merits of Osorio De Cordova’s ineffective assistance of 

counsel claim. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).

Osorio De Cordova’s contentions that the agency failed to consider evidence 

and failed to provide a basis for finding her motion untimely are not supported by 

the record. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010).

In light of this disposition, we do not reach Osorio De Cordova’s remaining 

contentions that the alleged ineffective assistance of counsel amounted to 
4 14-72116 

exceptional circumstances that prevented her from appearing, that she was 

prejudiced by her counsel’s performance, or that she is eligible for relief.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.