                              NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                              FOR THE NINTH CIRCUIT                         SEP 29 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

NIRMAL SINGH,                                     No. 08-71185

               Petitioner,                        Agency No. A073-428-644

  v.
                                                  MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Nirmal Singh, a native and citizen of India, 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 deportation proceedings conducted in

absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of


          *
             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).
discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894

(9th Cir. 2003), and de novo due process claims, Torres-Aguilar v. INS, 246 F.3d

1267, 1271 (9th Cir. 2001). We deny in part and dismiss in part the petition for

review.

      The agency did not abuse its discretion in denying Singh’s motion to reopen

because Singh concedes that he was personally served with the order to show cause

and a hearing notice. See 8 U.S.C. § 1252b(a)(1)–(2) (repealed 1996) (written

notice “shall be given in person to the alien (or, if personal service is not

practicable, such notice shall be given by certified mail to the alien or to the alien’s

counsel of record, if any)”); cf. Dobrota v. INS, 311 F.3d 1206, 1212-13 (9th Cir.

2002) (due process violated where petitioner did not receive order to show cause or

hearing notice and those documents were not served on his counsel). Singh’s due

process claim therefore fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)

(requiring error to prevail on due process claim). Because Singh received actual

notice of his hearing, we reject his argument concerning 5 U.S.C. § 500(f).

      We lack jurisdiction to review Singh’s contention that the asylum officer




                                            2                                     08-71185
who personally served Singh with the order to show cause violated 8 C.F.R. §

242.1(c) because he failed to exhaust this contention before the BIA. See Barron

v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                         3                                  08-71185
