                                                                            FILED
                              NOT FOR PUBLICATION                           DEC 19 2016

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



                              FOR THE NINTH CIRCUIT


ARMANDO JAVIER MUNOZ-                            No.   13-74384
HERNANDEZ,
                                                 Agency No. A096-342-923
               Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted December 14, 2016**

Before:        WALLACE, LEAVY, and FISHER, Circuit Judges.

      Armando Javier Munoz-Hernandez, a native and citizen of Mexico, 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

removal proceedings conducted in absentia. Our jurisdiction is governed by 8

      *
             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).
U.S.C. § 1252. We review de novo 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.

      Contrary to Munoz-Hernandez’ contention, the BIA did not fail to address

his contention that reopening was warranted because he lacked notice of his

hearing under 8 C.F.R. § 1003.23(b)(4)(ii) and 8 U.S.C. § 1229a(b)(5)(C)(ii). In

Munoz-Hernandez’ notice of appeal to the BIA, he noted that an “IJ has the power

to grant a motion to reopen without regard to time limits on the filing if the bases

of the motion is to rescind an order of removal entered in absentia pursuant to 8

U.S.C. § 1229a(b)(5)(C)(ii).” Munoz-Hernandez did not, however, raise the issue

of notice in his brief to the BIA. When a petitioner files a brief in his appeal, he

will be “deemed to have exhausted only those issues he raised and argued in his

brief before the BIA.” Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en

banc). Because Munoz-Hernandez did not exhaust this claim, the BIA did not err

in not addressing it. Relatedly, we lack jurisdiction to consider the merits of this

unexhausted contention. 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).




                                           2                                     13-74384
      We lack jurisdiction to review the agency’s discretionary decision not to

reopen sua sponte, and Munoz-Hernandez cites to no authority that the agency is

required to consider the absence of a timely opposition from the government. See

Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24 (9th Cir. 2011); Bonilla v.

Lynch, 840 F.3d 575, 588 (9th Cir. 2016).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                         3                                    13-74384
