                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 22 2011

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




                            FOR THE NINTH CIRCUIT



VILMA ELIZABETH CASTANEDA-                       No. 07-74853
CONTRERAS,
                                                 Agency No. A029-265-322
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

              Respondent.



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

                             Submitted June 10, 2011 **
                               Pasadena, California

Before: KOZINSKI, Chief Judge, IKUTA, Circuit Judge, and BOLTON, District
Judge.***




        *
             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).
        ***
              The Honorable Susan R. Bolton, District Judge for the District of
Arizona, sitting by designation.
      Castaneda failed to rebut the presumption of notice given to notices sent via

first-class mail. See Salta v. INS, 314 F.3d 1076, 1079 (9th Cir. 2002). Castaneda

missed her deportation hearings and waited 16 years before filing a motion to

reopen and rescind the in absentia order. Cf. Sembiring v. Gonzales, 499 F.3d 981,

988–89 (9th Cir. 2007). Neither Castaneda’s declaration that she applied for

several immigration benefits (in which she disclosed her ongoing deportation

proceedings) in the 16-year interval between the order of removal and her motion

to reopen, nor her other evidence (i.e., that she was still living at the address

provided to immigration officials at the time the Agency sent her the hearing

notice, and that she attended one of the deportation hearings) was enough to

overcome the presumption. Id. Therefore, the BIA did not abuse its discretion in

denying Castaneda’s motion to reopen and rescind the Agency’s in absentia order.

      Castaneda did not argue before the BIA that the agency violated its

regulations by sending notice of the October 31, 1990 hearing via first-class mail,

so this issue is not exhausted and we lack jurisdiction to consider it. See Barron v.

Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004); In re Munoz-Santos, 20 I. & N.

Dec. 205, 207 (BIA 1990); see also 8 C.F.R. § 3.17 (1990).

      DENIED in part and DISMISSED in part.




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