Martin Nevarez-Mendoza v. Eric Holder, Jr. , 554 F. App'x 642 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 13 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MARTIN NEVAREZ-MENDOZA, No. 09-72361
Petitioner, Agency No. A097-718-810
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 5, 2013
Pasadena, California
Before: SCHROEDER and CLIFTON, Circuit Judges, and TUNHEIM, District
Judge.**
Martin Nevarez-Mendoza, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his motion to reopen deportation
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
proceedings conducted in absentia. We review the denial of a motion to reopen for
abuse of discretion. Lopez-Vasquez v. Holder, 706 F.3d 1072, 1078 (9th Cir.
2013). We dismiss in part and deny in part the petition for review.
Nevarez-Mendoza argues for the first time in his petition for review that the
BIA erred in concluding that notice of the June 14, 2007 hearing was proper
because he did not receive notice of the hearing by mail, the BIA erred in applying
a presumption of delivery, and notice of the June 14, 2007 hearing contained an
error. We lack jurisdiction to review a new argument raised in the opening brief of
a petitioner’s appeal that was not first raised before the BIA. Barron v. Ashcroft,
358 F.3d 674, 678 (9th Cir. 2004) (holding that 8 U.S.C. § 1252(d)(1) “mandates
exhaustion and therefore generally bars [the court], for lack of subject-matter
jurisdiction, from reaching the merits of a legal claim not presented in
administrative proceedings below”). Nevarez-Mendoza argued before the BIA that
notice of the June 14, 2007 hearing was improper because it was not personally
served upon him, and the BIA’s order addressed this argument by stating only that
personal service was not required. This does not meet our “minimum
requirement[]” that Nevarez-Mendoza put the relevant issue “before the BIA such
that it had the opportunity to correct its error.” Arsdi v. Holder, 659 F.3d 925, 929
(9th Cir. 2011) (quoting Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008)).
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Thus, we dismiss Nevarez-Mendoza’s petition with regard to these arguments for
lack of jurisdiction.
The only remaining issue for review is whether the BIA abused its discretion
in concluding that notice was proper because personal service is not required for
proper notice of a hearing. The BIA correctly stated that personal service is not
required for notice of a hearing under the relevant statute. See 8 U.S.C. §
1229a(b)(5)(A) (referencing notice as required under § 1229(a)(1) for a notice to
appear, which states that written notice “shall be given in person to the alien (or, if
personal service is not practicable, through service by mail to the alien or to the
alien’s counsel of record, if any)”). It was not an abuse of discretion to affirm the
immigration judge’s denial of Nevarez-Mendoza’s motion to reopen on this
ground.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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