FILED
NOT FOR PUBLICATION MAY 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEISON PULIDO, AKA Ramon Luis No. 13-71807
Diaz-Ortiz,
Agency No. A078-023-949
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 13, 2015**
Before: LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.
Jeison Pulido, a native and citizen of Colombia, petitions for review of the
Board of Immigration Appeals’ order dismissing his appeal from an immigration
judge’s order denying his motion to reopen and rescind his in absentia removal
order. 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. Mohammed v. Gonzales, 400 F.3d 785,
791 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion in denying Pulido’s motion to reopen
on the ground that notice of his hearing was proper, where notice of his hearing
was sent by regular mail to the address he provided, was not returned as
undeliverable, and Pulido failed to overcome the presumption of effective service
by mail. See 8 C.F.R. § 1003.23(b)(4)(ii) (a motion to reopen to rescind an in
absentia removal order may be “filed at any time if the alien demonstrates that he
or she did not receive notice” of the hearing); Sembiring v. Gonzales, 499 F.3d
981, 986 (9th Cir. 2007) (describing evidence sufficient to overcome presumption
of effective service); Popa v. Holder, 571 F.3d 890, 896 (9th Cir. 2009) (“[A]
Notice to Appear that fails to include the date and time of an alien’s deportation
hearing, but that states that a date and time will be set later, is not defective so long
as a notice of the hearing is in fact later sent to the alien.”).
In his opening brief, Pulido fails to raise, and therefore has waived, any
challenge to the agency’s determinations that he failed to establish changed
country conditions warranting reopening to apply for asylum and that he failed to
submit applications for relief with his motion to reopen. See Lopez-Vasquez v.
2 13-71807
Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (a petitioner waives a contention
by failing to raise it in the opening brief).
To the extent Pulido contends that he timely filed his motion to reopen
within the 180-day deadline, we lack jurisdiction to consider this contention, where
Pulido failed to exhaust it 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 before the agency).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 13-71807