Jose Ayala-Aguilar v. Loretta E. Lynch , 611 F. App'x 418 ( 2015 )

FILED
NOT FOR PUBLICATION JUL 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE VICTOR AYALA-AGUILAR, No. 13-71919
Petitioner, Agency No. A094-796-110
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 21, 2015**
Before: CANBY, BEA, and MURGUIA, Circuit Judges.
Jose Victor Ayala-Aguilar, a native and citizen of El Salvador, petitions pro
se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s order denying his motion to reopen removal
proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252.
*
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).
We review de novo questions of law and review for abuse of discretion the denial
of a motion to reopen. Salta v. INS, 314 F.3d 1076, 1078 (9th Cir. 2002). We
deny the petition for review.
The agency did not abuse its discretion in denying Ayala-Aguilar’s motion
to reopen and rescind his in absentia order, where the notice of hearing was mailed
to the last address he provided and he failed to provide sufficient evidence to rebut
the presumption of proper delivery of the notice of hearing. See 8 U.S.C.
§ 1229a(b)(5)(A) (written notice is considered sufficient if sent to the most recent
address provided); Salta, 314 F.3d at 1079 (giving examples of evidence that could
be sufficient to overcome presumption of delivery). Contrary to Ayala-Aguilar’s
contention, the record indicates he was personally served with his notice to appear,
which informed him of the consequences of failing to appear and his obligation to
notify the immigration court of any address change.
The agency also did not abuse its discretion in denying as untimely Ayala-
Aguilar’s motion to reopen to apply for relief, where he filed it more than four
years after his final order of removal and failed to assert changed country
conditions that could provide an exception to the filing deadline. See 8 U.S.C.
§ 1229a(c)(7)(C)(i)-(ii).
Contrary to Ayala-Aguilar’s contention, the BIA sufficiently articulated its
2 13-71919
reasons for denial. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010).
PETITION FOR REVIEW DENIED.
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