Leticia Mendez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2019
• Docket: 18-70105
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LETICIA MENDEZ, No. 18-70105

Petitioner, Agency No. A070-934-597

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted February 19, 2019**

Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.

Leticia Mendez, a native and citizen of Mexico, petitions for review of the

Board of Immigration Appeals’ order dismissing her appeal from an immigration

judge’s order denying her motion to reopen deportation proceedings conducted in

absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of

discretion the denial of a motion to reopen. Martinez-Hernandez v. Holder, 778

* 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). F.3d 1086, 1088 (9th Cir. 2015). We deny in part and dismiss in part the petition

for review.

The agency did not abuse its discretion in denying Mendez’s motion to

reopen based on lack of notice, where she did not sufficiently show that she did not

refuse service of the notice of hearing, and therefore did not rebut the presumption

of effective service. See Arrieta v. INS, 117 F.3d 429, 432 (9th Cir. 1997) (“[I]f

[petitioner] can establish that her mailing address has remained unchanged, that

neither she nor a responsible party working or residing at that address refused

service, and that there was nondelivery or improper delivery by the Postal Service,

then she has rebutted the presumption of effective service.”). In so concluding, we

do not consider Mendez’s unexhausted contentions regarding the United States

Postal Service. 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).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

2 18-70105