Marvin Ernesto Lopez v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARVIN ERNESTO LOPEZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 14-72108
Agency No. A099-678-982
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 10, 2018**
Before: CANBY, W. FLETCHER, and CALLAHAN, Circuit Judges.
Marvin Ernesto Lopez, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s order denying his motion to reopen removal
proceedings conducted in absentia, and denying his motion to remand. We have
* 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).
FILED
JUL 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of
a motion to reopen. Sembiring v. Gonzales, 499 F.3d 981, 985 (9th Cir. 2007). We
deny the petition for review.
The BIA did not abuse its discretion in dismissing Lopez’s appeal and
denying his motion to remand based on lack of notice, where the hearing notice
was sent by regular mail to the address last provided by Lopez, and he failed to
rebut the presumption of effective service. See id. at 986-88 (describing evidence
relevant to overcome presumption of effective service sent by regular mail);
Dobrota v. INS, 311 F.3d 1206, 1211 (9th Cir. 2002) (notice requirement is
satisfied by mailing notice of the hearing to an alien at the address last provided to
the agency). We reject Lopez’s contention that the BIA failed to give adequate
weight to his declaration. Cf. Salta v. INS, 314 F. 3d 1076, 1079 (9th Cir. 2002)
(“Where a petitioner actually initiates a proceeding to obtain a benefit, appears at
an earlier hearing, and has no motive to avoid the hearing, a sworn affidavit from
[petitioner] that neither [he] nor a responsible party residing at [his] address
received the notice should ordinarily be sufficient to rebut the presumption of
[regular mail] delivery.”).
Because Lopez’s failure to overcome the presumption of delivery of the
hearing notice is dispositive as to both motions, we do not reach his contentions
regarding the effectiveness of prior counsel or compliance with Matter of Lozada,

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19 I. & N. Dec. 637 (BIA 1988). See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th
Cir. 2004) (courts and agencies are not required to decide issues unnecessary to the
results they reach).
PETITION FOR REVIEW DENIED.

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