                                                                            FILED
                             NOT FOR PUBLICATION                            MAY 20 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


JEISON PULIDO, AKA Ramon Luis                    No. 13-71807
Diaz-Ortiz,
                                                 Agency No. A078-023-949
               Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted May 13, 2015**

Before:        LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.

      Jeison Pulido, a native and citizen of Colombia, petitions for review of the

Board of Immigration Appeals’ order dismissing his appeal from an immigration

judge’s order denying his motion to reopen and rescind his in absentia removal

order. 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. Mohammed v. Gonzales, 400 F.3d 785,

791 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.

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

on the ground that notice of his hearing was proper, where notice of his hearing

was sent by regular mail to the address he provided, was not returned as

undeliverable, and Pulido failed to overcome the presumption of effective service

by mail. See 8 C.F.R. § 1003.23(b)(4)(ii) (a motion to reopen to rescind an in

absentia removal order may be “filed at any time if the alien demonstrates that he

or she did not receive notice” of the hearing); Sembiring v. Gonzales, 499 F.3d

981, 986 (9th Cir. 2007) (describing evidence sufficient to overcome presumption

of effective service); Popa v. Holder, 571 F.3d 890, 896 (9th Cir. 2009) (“[A]

Notice to Appear that fails to include the date and time of an alien’s deportation

hearing, but that states that a date and time will be set later, is not defective so long

as a notice of the hearing is in fact later sent to the alien.”).

       In his opening brief, Pulido fails to raise, and therefore has waived, any

challenge to the agency’s determinations that he failed to establish changed

country conditions warranting reopening to apply for asylum and that he failed to

submit applications for relief with his motion to reopen. See Lopez-Vasquez v.




                                             2                                    13-71807
Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (a petitioner waives a contention

by failing to raise it in the opening brief).

       To the extent Pulido contends that he timely filed his motion to reopen

within the 180-day deadline, we lack jurisdiction to consider this contention, where

Pulido failed to exhaust it before the agency. See Tijani v. Holder, 628 F.3d 1071,

1080 (9th Cir. 2010) (the court lacks jurisdiction to consider legal claims not

presented in an alien’s administrative proceedings before the agency).

       PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                                3                                 13-71807
