NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 29 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
NIRMAL SINGH, No. 08-71185
Petitioner, Agency No. A073-428-644
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Nirmal Singh, a native and citizen of India, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration
judge’s order denying his motion to reopen deportation proceedings conducted in
absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of
*
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).
discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894
(9th Cir. 2003), and de novo due process claims, Torres-Aguilar v. INS, 246 F.3d
1267, 1271 (9th Cir. 2001). We deny in part and dismiss in part the petition for
review.
The agency did not abuse its discretion in denying Singh’s motion to reopen
because Singh concedes that he was personally served with the order to show cause
and a hearing notice. See 8 U.S.C. § 1252b(a)(1)–(2) (repealed 1996) (written
notice “shall be given in person to the alien (or, if personal service is not
practicable, such notice shall be given by certified mail to the alien or to the alien’s
counsel of record, if any)”); cf. Dobrota v. INS, 311 F.3d 1206, 1212-13 (9th Cir.
2002) (due process violated where petitioner did not receive order to show cause or
hearing notice and those documents were not served on his counsel). Singh’s due
process claim therefore fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(requiring error to prevail on due process claim). Because Singh received actual
notice of his hearing, we reject his argument concerning 5 U.S.C. § 500(f).
We lack jurisdiction to review Singh’s contention that the asylum officer
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who personally served Singh with the order to show cause violated 8 C.F.R. §
242.1(c) because he failed to exhaust this contention before the BIA. 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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