Eduardo Castillo-Trigoso v. Eric H. Holder Jr. ( 2014 )

FILED
NOT FOR PUBLICATION DEC 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDUARDO NEMESIO CASTILLO- No. 08-70838
TRIGOSO,
Agency No. A072-142-425
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2014**
Before: WALLACE, LEAVY, and BYBEE, Circuit Judges.
Eduardo Nemesio Castillo-Trigoso, a native and citizen of Peru, petitions for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his motion to reopen deportation
proceedings conducted in absentia. Our jurisdiction is governed by 8 U.S.C.
*
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).
§ 1252. We review for abuse of discretion the denial of a motion to reopen.
Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir. 2000) (per curiam). We deny in part
and dismiss in part the petition for review.
The agency did not abuse its discretion in denying Castillo-Trigoso’s moiton
to reopen on the ground that he failed to establish improper notice, where his
counsel of record was properly served by certified mail with written notice of the
February 15, 1996 hearing. See 8 U.S.C. § 1252b(a)(2)(A) (1994) (written notice
shall be given by certified mail to the alien or to the alien’s counsel of record);
Garcia, 222 F.3d at 1209 (notice to attorney of record constitutes notice to alien).
Because Castillo-Trigoso did not challenge before the BIA the IJ’s
dispositive determination that he failed to establish the due diligence necessary for
equitable tolling of the motions deadline, any such challenge is not exhausted and
we do not have jurisdiction to consider it. See Zara v. Ashcroft, 383 F.3d 927, 930-
31 (9th Cir. 2004); 8 U.S.C. § 1252(d)(1).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 08-70838