NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGARITO MARTIN-FUNES, No. 15-72441
Petitioner, Agency No. A073-985-991
v.
MEMORANDUM *
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Margarito Martin-Funes, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his motion to reopen deportation
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 in part and dismiss in part the petition for review.
The agency did not abuse its discretion in denying Martin-Funes’s motion to
reopen, based on lack of notice, where the record shows he was personally served
an Order to Show Cause (“OSC”) with the required advisals, and he was served
notice of his hearing with the required advisals. See 8 C.F.R.
§ 1003.23(b)(4)(iii)(A)(2) (a motion to reopen to rescind an in absentia order may
be filed at any time if “the alien demonstrates that he or she did not receive
notice”); 8 U.S.C. § 1252(a)(2)(A) (1996) (written notice shall be given to the alien
in the order to show cause or otherwise, of the time and place at which the
proceedings will be held, and the consequences of the failure to appear at such
proceedings.) Accordingly, Martin-Funes’s due process claim fails. See Lata v.
I.N.S., 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process challenge,
an alien must show error and prejudice).
To the extent that Martin-Funes now contends that the signatures on the
OSC and the change of address form are not his, we lack jurisdiction to consider
this unexhausted contention. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir.
2010) (no jurisdiction to review legal claims not presented in the petitioner’s
administrative proceedings before the BIA).
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To the extent that Martin-Funes contends that he was the victim of
ineffective assistance from a notary, we lack jurisdiction to consider that
unexhausted contention. See id.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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