NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 30 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELVIN MANUEL LOPEZ-JOVEL, No. 17-70523
Petitioner, Agency No. A098-988-519
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 27, 2018**
Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.
Melvin Manuel Lopez-Jovel, 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 decision denying his motion to reopen removal
proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252.
*
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).
We review for abuse of 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 the petition for review.
The agency did not abuse its discretion or violate due process in denying
Lopez-Jovel’s motion to reopen based on lack of notice, where Lopez-Jovel
received personal service of his notice to appear (“NTA”), a subsequent notice of
hearing was mailed to his most recent address of record, and he did not provide
sufficient evidence to rebut the presumption of effective service of the notice of
hearing. See Sembiring v. Gonzales, 499 F.3d 981, 986-88 (9th Cir. 2007)
(describing evidence relevant to overcome presumption of effective service sent by
regular mail); 8 U.S.C. § 1229(c) (“Service by mail [of a hearing notice] shall be
sufficient if there is proof of attempted delivery to the last address provided by the
alien . . .”); Popa v. Holder, 571 F.3d 890, 897 (9th Cir. 2009) (“Due process is
satisfied if service is conducted in a manner reasonably calculated to ensure that
notice reaches the alien.” (citation and quotation marks omitted)).
Contrary to Lopez-Jovel’s contentions, the NTA properly advised him of the
consequences of failing to appear and the possibility of future hearings. There was
no requirement that the NTA be in Spanish. See Flores-Chavez v. Ashcroft, 362
2 17-70523
F.3d 1150, 1155 n.4 (9th Cir. 2004) (“Current law does not require that the [NTA]
. . . be in any language other than English.”); Lata v. INS, 204 F.3d 1241, 1246 (9th
Cir. 2000) (an alien must show error and substantial prejudice to prevail on a due
process claim).
PETITION FOR REVIEW DENIED.
3 17-70523