Roxana Maria Vasquez-Hernandez v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JUL 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROXANA MARIA ELIZABETH No. 13-71080
VASQUEZ-HERNANDEZ,
Agency No. A094-787-659
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 22, 2014**
Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges.
Roxana Maria Elizabeth Vasquez-Hernandez, a native and citizen of El
Salvador, petitions for review of an order of the Board of Immigration Appeals
(“BIA”) dismissing her appeal from a decision of an immigration judge (“IJ”)
denying her motion to reopen removal proceedings conducted in absentia. Our
*
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).
jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the
denial of a motion to reopen and review de novo questions of law. Hamazaspyan
v. Holder, 590 F.3d 744, 747 (9th Cir. 2009). We deny in part and dismiss in part
the petition for review.
The agency did not abuse its discretion by denying Vasquez-Hernandez’s
motion to reopen seeking to rescind her in absentia order of removal based on lack
of notice, where the agency sent a hearing notice by regular mail to Vasquez-
Hernandez’s most recent address of record, and Vasquez-Hernandez did not
present sufficient evidence to rebut the presumption of effective delivery. See
Popa v. Holder, 571 F.3d 890, 897-98 (9th Cir. 2009) (“The government satisfies
notice requirements ‘by mailing notice of the hearing to an alien at the address last
provided to the [agency].’” (citation omitted)); see also Sembiring v. Gonzales,
499 F.3d 981, 988-89 (9th Cir. 2007) (identifying factors relevant to evaluating a
petitioner’s rebuttal of the presumption of effective delivery). Moreover, Vasquez-
Hernandez has not established other grounds for rescission of the in absentia order
of removal. See 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(ii).
The agency applied the correct legal standard to Vasquez-Hernandez’s claim
of lack of notice. See Mendez-Castro v. Mukasey, 552 F.3d 975, 980 (9th Cir.
2009) (concluding that agency “applied the correct legal standard” in a case where
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it “expressly cited and applied [relevant case law] in rendering its decision, which
is all our review requires”).
We lack jurisdiction to consider Vasquez-Hernandez’s requests for sua
sponte reopening, see Toufighi v. Mukasey, 538 F.3d 988, 993 n.8 (9th Cir. 2008),
and prosecutorial discretion, see Vilchiz-Soto v. Holder, 688 F.3d 642, 644
(9th Cir. 2012) (order).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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