Orellana-Gevara v. Holder , 381 F. App'x 667 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MAGIN ORELLANA-GEVARA, No. 08-70364
Petitioner, Agency No. A099-469-341
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Magin Orellana-Gevara, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ order affirming without opinion an
immigration judge’s (“IJ”) decision denying his motion to reopen removal
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, and
review de novo questions of law, including claims of due process violations.
Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part
and dismiss in part the petition for review.
The IJ did not abuse her discretion by denying Orellana-Gevara’s motion to
reopen because the notice of hearing was addressed to Orellana-Gevara in care of
his adult custodian at their shared address of record. See 8 U.S.C. § 1229(c)
(notice by mail to most recent address provided by alien sufficient); cf. Flores-
Chavez v. Ashcroft, 362 F.3d 1150, 1157-58 (9th Cir. 2004) (notice of hearing
served on minor insufficient where not also served on adult custodian).
To the extent Orellana-Gevara sought to reopen based on exceptional
circumstances, the motion was filed more than 180 days after the IJ’s July 28,
2006, order, see 8 C.F.R. § 1003.23(b)(4)(ii), and Orellana-Gevara failed to
demonstrate grounds for equitably tolling the filing deadline, see Iturribarria v.
INS, 321 F.3d 889, 897 (9th Cir. 2003).
The denial of Orellana-Gevara’s motion to reopen therefore did not violate
due process. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error
for a due process violation).
We lack jurisdiction to review Orellana-Gevara’s contention that the IJ
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violated due process during the April 21, 2006, hearing, because Orellana-Gevara
failed to raise this issue before the agency. See Barron v. Ashcroft, 358 F.3d 674,
678 (9th Cir. 2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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