Victorio Barrios Barrios v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

VICTORIO DELFINO BARRIOS No. 15-73410
BARRIOS,
Agency No. A070-945-648
Petitioner,

v. MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted May 24, 2017**

Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.

Victorio Delfino Barrios Barrios, a native and citizen of Guatemala,

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

*
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).
governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a

motion to reopen. Sembiring v. Gonzales, 499 F.3d 981, 985 (9th Cir. 2007). We

deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying Barrios Barrios’ motion to

reopen based on lack of notice where the record establishes that he was personally

served with an Order to Show Cause (“OSC”) and Notice of Hearing, written in

both English and Spanish. There was no statutory requirement that the OSC be

orally translated. See 8 U.S.C. § 1252b(a)(2)-(3) (1996); Khan v. Ashcroft, 374

F.3d 825, 828 (9th Cir. 2004) (notice proper where INS adhered to statutorily

imposed procedural requirements).

We lack jurisdiction to consider Barrios Barrios’ unexhausted contentions

regarding irregularities in the OSC’s Certificate of Translation and Oral Notice.

See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks

jurisdiction to consider contentions not presented in an alien’s administrative

proceedings before the agency).

The BIA did not abuse its discretion in denying Barrios Barrios’ motion to

reopen to apply for asylum and related relief, where he filed it more than 17 years

after the applicable deadline, see 8 C.F.R. § 1003.23(b)(1), and he did not

2 15-73410
demonstrate changed country conditions to qualify for the regulatory exception to

the deadline for filing motions to reopen, see 8 C.F.R. § 1003.23(b)(4)(i).

In light of this disposition, we do not reach Barrios Barrios’ remaining

contentions regarding membership in a particular social group or eligibility for

relief.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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