                                                                            FILED
                             NOT FOR PUBLICATION                             JUL 20 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



ENJI LI,                                          No. 09-71954

               Petitioner,                        Agency No. A088-125-406

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

               Respondent.



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

                              Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       Enji Li, a native and citizen of China, petitions for review of the Board of

Immigration Appeals’ order dismissing her appeal from an immigration judge’s

order denying her motion to reopen removal 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, Sembiring v. Gonzales, 499 F.3d 981,

985 (9th Cir. 2007), and we deny in part and dismiss in part the petition for review.

      The agency was within its discretion in denying Li’s motion to reopen on the

ground that she failed to rebut the presumption of effective service by regular mail.

See 8 U.S.C. § 1229a(b)(5)(C)(ii); cf. Sembiring, 499 F.3d at 988-89 (describing

evidence sufficient to overcome presumption of effective service). In evaluating

this petition for review, we do not consider facts asserted for the first time in Li’s

opening brief. See Sembiring, 499 F.3d at 988.

      Li failed to exhaust her contention concerning service of retained counsel.

See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (this court lacks

jurisdiction to review contentions not raised before the agency).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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