Melvin Lopez-Jovel v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 30, 2018
• Docket: 17-70523
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 30 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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