Jorge Olivas-Barraza v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 19, 2018
• Docket: 17-71082
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JORGE OLIVAS-BARRAZA, No. 17-71082

Petitioner, Agency No. A092-187-729

v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Submitted December 17, 2018**

Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.

Jorge Olivas-Barraza, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ decision dismissing his appeal from an

immigration judge’s order denying his motion to reopen deportation proceedings

conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for

* 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). abuse of discretion the denial of a motion to reopen. Martinez-Hernandez v.

Holder, 778 F.3d 1086, 1088 (9th Cir. 2015). We deny the petition for review.

The agency did not abuse its discretion in denying Olivas-Barraza’s motion

to reopen based on lack of notice, where he did not sufficiently establish that his

mailing address remained unchanged. See 8 U.S.C. § 1252b(a) (1993) (no notice

required if an alien fails to provide an address at which he can be contacted);

Arrieta v. INS, 117 F.3d 429, 430 (9th Cir. 1997) (under 8 U.S.C. § 1252b (1994),

proper service of a hearing notice is presumed when it is sent via certified mail to

the alien’s last known address).

The agency did not abuse its discretion in denying Olivas-Barraza’s motion

to reopen as untimely with respect to his deportability challenges, where his

motion did not qualify for any exception to the filing deadline. See 8 U.S.C.

§ 1252b(c)(3) (1993); Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010)

(holding the BIA adequately considered evidence and sufficiently announced its

decision).

As timeliness is dispositive, we do not reach the merits of Olivas-Barraza’s

deportability challenges. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir.

2004) (the courts and the agency are not required to make findings on issues the

decision of which is unnecessary to the results).

PETITION FOR REVIEW DENIED.

2 17-71082