NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 12 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERBERT ORLANDO HERRERA- No. 16-72429
VENTURA,
Agency No. A099-664-551
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 10, 2018**
Before: CANBY, W. FLETCHER and CALLAHAN, Circuit Judges.
Herbert Orlando Herrera-Ventura, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ order dismissing his
appeal from an immigration judge’s order denying his motion to reopen removal
proceedings conducted in absentia. Our jurisdiction is governed by 8 U.S.C.
*
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).
§ 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 agency did not abuse its discretion in denying Herrera-Ventura’s
motion to reopen based on lack of notice, where he did not provide sufficient
evidence to rebut the presumption of effective service. See id. at 988-89
(identifying factors relevant to evaluating a petitioner’s rebuttal of the presumption
of effective delivery); Carrillo-Gonzalez v. INS, 353 F.3d 1077, 1079 (9th Cir.
2003) (statements by counsel are not evidence).
To the extent Herrera-Ventura contends that the agency should have
permitted him to file an otherwise untimely motion to reopen based on changed
conditions in El Salvador, we lack jurisdiction to consider this unexhausted
contention. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (this court
lacks jurisdiction to review contentions not raised before the agency).
In light of this disposition, we do not reach Herrera-Ventura’s remaining
contentions regarding eligibility for relief.
Herrera-Ventura’s request to stay his removal is denied as unnecessary. The
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temporary stay of removal will expire upon issuance of the mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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