FILED
NOT FOR PUBLICATION FEB 22 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LESYA SHUNEVYCH, No. 15-73797
Petitioner, Agency No. A076-667-235
v.
MEMORANDUM*
JEFFERSON B. SESSIONS, III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
Lesya Shunevych, a native and citizen of Ukraine, petitions for review of the
Board of Immigration Appeals’ order dismissing her appeal from an immigration
judge’s order denying her motion to reopen removal 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 Ninth Circuit Rule 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, and review de novo constitutional
claims. 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 agency did not abuse its discretion in denying Shunevych’s motion to
reopen, where it was filed fourteen years after issuance of her order of removal in
absentia, and Shunevych failed to establish any statutory or regulatory basis to
excuse the untimeliness of her motion. See 8 C.F.R. § 1003.23(b)(4)(i), (ii)
(setting 180-day deadline for motions to reopen in absentia removal orders based
on exceptional circumstances, and no deadline for motions based on lack of notice
of a hearing); 8 U.S.C. § 1229a(b)(5)(C). Because Shunevych was personally
served a Notice to Appear that informed her of her obligation to update the court
with a current address, but she failed to do so, the agency was not required to
provide written notice of the hearing. See 8 U.S.C. § 1229a(b)(5)(B) (“No written
notice shall be required under subparagraph (A) if the alien has failed to provide
the address required under section 1229(a)(1)(F) of this title.”). The Notice to
Appear did not have to be provided in any language other than English. See
Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1155 n.4 (9th Cir. 2004) (“Current law
does not require that the Notice to Appear . . . be in any language other than
English.”); Popa v. Holder, 571 F.3d 890, 897-98 (9th Cir. 2009).
2 15-73797
To the extent Shunevych challenges the agency’s decision not to invoke its
sua sponte authority to reopen, we lack jurisdiction over that contention. See
Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24 (9th Cir. 2011); cf. Bonilla v.
Lynch, 840 F.3d 575, 588 (9th Cir. 2016).
To the extent Shunevych contends changed conditions in Ukraine warrant
reopening, we lack jurisdiction to consider this unexhausted contention. See Tijani
v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 15-73797