Cristobal Gonon Tzun v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRISTOBAL GONON TZUN,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 16-73897
Agency No. A070-939-711
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 22, 2018**
Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
Cristobal Gonon Tzun, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) order denying his motion to reopen deportation
proceedings conducted in absentia. Our jurisdiction is governed by 8 U.S.C.
* 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
OCT 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-73897
§ 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 or violate due process in denying
Gonon Tzun’s motion to reopen for failure to establish lack of notice of his
deportation hearing, where the record contains a signed Order to Show Cause
(“OSC”) and evidence of personal 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 lack of notice of his hearing); 8 U.S.C. § 1252b(a)(2) (1994)
(requiring written notice of the time and place of proceedings be personally served
on the alien or if personal service is not practicable, requiring written notice be
given by certified mail). The record does not support Gonon Tzun’s contention that
the agency failed to consider evidence. See Najmabadi v. Holder, 597 F.3d 983,
990 (9th Cir. 2010); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006)
(petitioner did not overcome the presumption that the BIA did review the record).
We lack jurisdiction to consider Gonon Tzun’s unexhausted contention that
service was improper because the OSC was not read to him in a language he could
understand. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (“We lack
jurisdiction to review legal claims not presented in an alien’s administrative
proceedings before the BIA.”).

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3 16-73897
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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