                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                          FILED
                             FOR THE NINTH CIRCUIT                            FEB 13 2014

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

MARTIN NEVAREZ-MENDOZA,                         No. 09-72361

               Petitioner,                      Agency No. A097-718-810

               v.                               MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


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

                       Argued and Submitted February 5, 2013
                                Pasadena, California

Before: SCHROEDER and CLIFTON, Circuit Judges, and TUNHEIM, District
Judge.**

      Martin Nevarez-Mendoza, 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 decision denying his motion to reopen deportation


           *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
         The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
proceedings conducted in absentia. We review the denial of a motion to reopen for

abuse of discretion. Lopez-Vasquez v. Holder, 706 F.3d 1072, 1078 (9th Cir.

2013). We dismiss in part and deny in part the petition for review.

      Nevarez-Mendoza argues for the first time in his petition for review that the

BIA erred in concluding that notice of the June 14, 2007 hearing was proper

because he did not receive notice of the hearing by mail, the BIA erred in applying

a presumption of delivery, and notice of the June 14, 2007 hearing contained an

error. We lack jurisdiction to review a new argument raised in the opening brief of

a petitioner’s appeal that was not first raised before the BIA. Barron v. Ashcroft,

358 F.3d 674, 678 (9th Cir. 2004) (holding that 8 U.S.C. § 1252(d)(1) “mandates

exhaustion and therefore generally bars [the court], for lack of subject-matter

jurisdiction, from reaching the merits of a legal claim not presented in

administrative proceedings below”). Nevarez-Mendoza argued before the BIA that

notice of the June 14, 2007 hearing was improper because it was not personally

served upon him, and the BIA’s order addressed this argument by stating only that

personal service was not required. This does not meet our “minimum

requirement[]” that Nevarez-Mendoza put the relevant issue “before the BIA such

that it had the opportunity to correct its error.” Arsdi v. Holder, 659 F.3d 925, 929

(9th Cir. 2011) (quoting Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008)).


                                          2
Thus, we dismiss Nevarez-Mendoza’s petition with regard to these arguments for

lack of jurisdiction.

      The only remaining issue for review is whether the BIA abused its discretion

in concluding that notice was proper because personal service is not required for

proper notice of a hearing. The BIA correctly stated that personal service is not

required for notice of a hearing under the relevant statute. See 8 U.S.C. §

1229a(b)(5)(A) (referencing notice as required under § 1229(a)(1) for a notice to

appear, which states that written notice “shall be given in person to the alien (or, if

personal service is not practicable, through service by mail to the alien or to the

alien’s counsel of record, if any)”). It was not an abuse of discretion to affirm the

immigration judge’s denial of Nevarez-Mendoza’s motion to reopen on this

ground.

      PETITION FOR REVIEW DISMISSED in part; DENIED in part.




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