Erick Oswaldo Osorio Lima v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERICK OSWALDO OSORIO LIMA,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-73555
Agency No. A072-536-295
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Erick Oswaldo Osorio Lima, a native and citizen of Guatemala, petitions pro
se 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. Our jurisdiction is governed by 8 U.S.C.
FILED
DEC 23 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 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).

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§ 1252. We review for abuse of discretion the denial of a motion to reopen, and
review de novo claims of due process violations and questions of law. 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 or violate due process in denying
Osorio Lima’s motion to reopen as untimely. Osorio Lima filed his motion more
than 17 years after his final order of removal, and the record reflects that he was
personally served the Notice of Hearing, which contained the date and location of
his June 26, 1995 hearing. See 8 C.F.R. § 1003.23(b)(1) & (b)(4)(iii)(A)(2); 8
U.S.C. § 1252b(a)(2)(A) (1994) (notice of hearing shall be given in person or, if
personal service is not practicable, sent by certified mail); Matter of M-S-, 22 I. &
N. Dec. 349, 356-57 (BIA 1998) (a motion to reopen an in absentia order to apply
for new forms of relief is subject to the 90-day motion to reopen deadline); Lata v.
INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail
on due process claim).
Osorio Lima’s contention that the agency relied on factual and legal errors in
denying the motion is not supported by the record.
Osorio Lima’s contention that the agency violated due process by denying
his motion before he could file supplemental documentation fails for lack of
13-73555 2

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prejudice, where he did not represent what evidence he intended to submit. See
Lata at 1246.
We lack jurisdiction to consider Osorio Lima’s unexhausted contention
regarding his eligibility for an I-130 visa petition. See Tijani v. Holder, 628 F.3d
1071, 1080 (9th Cir. 2010) (this court lacks jurisdiction to consider claims not
raised before the agency in administrative proceedings).
In light of our disposition, we do not reach Osorio Lima’s remaining
contentions regarding his prima facie eligibility for relief.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
13-73555 3

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