Jorge Olivas-Barraza v. Matthew Whitaker ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE OLIVAS-BARRAZA, No. 17-71082
Petitioner, Agency No. A092-187-729
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 17, 2018**
Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.
Jorge Olivas-Barraza, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ decision dismissing his appeal from an
immigration judge’s order denying his motion to reopen deportation proceedings
conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for
*
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).
abuse of discretion the denial of a motion to reopen. Martinez-Hernandez v.
Holder, 778 F.3d 1086, 1088 (9th Cir. 2015). We deny the petition for review.
The agency did not abuse its discretion in denying Olivas-Barraza’s motion
to reopen based on lack of notice, where he did not sufficiently establish that his
mailing address remained unchanged. See 8 U.S.C. § 1252b(a) (1993) (no notice
required if an alien fails to provide an address at which he can be contacted);
Arrieta v. INS, 117 F.3d 429, 430 (9th Cir. 1997) (under 8 U.S.C. § 1252b (1994),
proper service of a hearing notice is presumed when it is sent via certified mail to
the alien’s last known address).
The agency did not abuse its discretion in denying Olivas-Barraza’s motion
to reopen as untimely with respect to his deportability challenges, where his
motion did not qualify for any exception to the filing deadline. See 8 U.S.C.
§ 1252b(c)(3) (1993); Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010)
(holding the BIA adequately considered evidence and sufficiently announced its
decision).
As timeliness is dispositive, we do not reach the merits of Olivas-Barraza’s
deportability challenges. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir.
2004) (the courts and the agency are not required to make findings on issues the
decision of which is unnecessary to the results).
PETITION FOR REVIEW DENIED.
2 17-71082