Edy Guerrero v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAR 17 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDY GUERRERO, AKA Eduardo Basilio No. 13-72225
Pedro,
Agency No. A073-940-022
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 10, 2015**
Before: FARRIS, WARDLAW, and PAEZ, Circuit Judges.
Edy Guerrero, a native and citizen of Guatemala, petitions pro se for review
of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s denial of his motion to reopen deportation proceedings
conducted in absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. We
*
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).
review for abuse of discretion the denial of a motion to reopen, Mohammed v.
Gonzales, 400 F.3d 785, 791 (9th Cir. 2005), and we deny in part and dismiss in
part the petition for review.
The agency did not abuse its discretion in denying Guerrero’s motion as
untimely, where it was filed more than 16 years after his in absentia order of
deportation. See 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1) (an order of deportation
entered in absentia may only be rescinded upon a motion to reopen filed within
180 days of the order if the alien demonstrates exceptional circumstances).
Additionally, Guerrero did not show that notice was improper where he was
personally served with the Order to Show Cause and the hearing notice, written in
English and Spanish, containing the date and time of his hearing. See 8 C.F.R.
§ 1003.23(b)(4)(iii)(A)(2) (an order of deportation entered in absentia may be
rescinded at any time if the alien demonstrates that he or she did not receive
notice); 8 U.S.C. § 1252b(a)(1), (2) (1995) (requiring written notice in person to
the alien, or if personal service is not practicable, then service by certified mail, of
the Order to Show Cause and the hearing notice). Contrary to Guerrero’s
contention, the written notice was not required to be read to him in Q’anjobal. See
8 U.S.C. § 1252b(a)(3)(A) (1995) (requiring only that the Order to Show Cause
and hearing notice be provided in English and Spanish).
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Guerrero did not raise, and has therefore waived, any challenge to the
agency’s determination that his hearing notice clearly stated the time of the
hearing. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (issues not
raised in opening brief are waived).
To the extent Guerrero contends he is eligible for cancellation of removal,
we lack jurisdiction to consider this contention as it was not exhausted before the
agency. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks
jurisdiction to consider legal claims not presented in an alien’s administrative
proceedings).
Guerrero’s alternate request for mediation is denied.
PETITION FOR REVIEW DENIED in part, DISMISSED in part.
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