Mariana De Jesus Sanchez- Dutan v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIANA DE JESUS SANCHEZ-
DUTAN,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 09-72716
Agency No. A072-991-342
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 26, 2016**
Before: McKEOWN, WARDLAW, and PAEZ, Circuit Judges.
Mariana de Jesus Sanchez-Dutan, a native and citizen of Ecuador, 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.
FILED
MAY 03 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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§ 1252. 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 Sanchez-Dutan’s motion
to reopen based on lack of notice of her hearing, where the record shows that she
was personally served the Order to Show Cause, which contained the date and
location of her hearing, as well as her signature and fingerprint on the certificate of
service. 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. § 1252b(a)(2)(A) (1994) (notice of hearing shall
be given in person or sent by certified mail).
The agency did not abuse its discretion in denying Sanchez-Dutan’s motion
to reopen to apply for adjustment of status, where her motion was filed more than
13 years after her final order of deportation. See 8 C.F.R. § 1003.23(b)(1) (a
motion to reopen must be filed within 90 days of a final order of deportation);
Matter of Monges-Garcia, 25 I. & N. Dec. 246 (BIA 2010) (the 90-day filing
deadline applies to motions to reopen in absentia deportation orders to apply for
adjustment of status, as no conflict exists between the 90-day deadline and former
8 U.S.C. § 1252b(e)(1)).
0099--7722771166 2

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Sanchez-Dutan’s contention that the agency applied the wrong legal
standards in denying the motion to reopen is not supported by the record.
Because the agency did not abuse its discretion or commit any error in
denying Sanchez-Dutan’s motion to reopen, it follows that the agency did not
violate due process in denying the motion. See Lata v. INS, 204 F.3d 1241, 1246
(9th Cir. 2000) (to prevail on a due process challenge, an alien must show error and
prejudice).
We lack jurisdiction to consider Sanchez-Dutan’s unexhausted contentions
that the IJ should have held an evidentiary hearing and that the immigration court
failed to notify her of a change in her hearing location. See Tijani v. Holder, 628
F.3d 1071, 1080 (9th Cir. 2010).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
0099--7722771166 3

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