                                                                            FILED
                             NOT FOR PUBLICATION                            MAY 03 2016

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



                             FOR THE NINTH CIRCUIT


MARIANA DE JESUS SANCHEZ-                        No. 09-72716
DUTAN,
                                                 Agency No. A072-991-342
               Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted April 26, 2016**

Before:        McKEOWN, WARDLAW, and PAEZ, Circuit Judges.

      Mariana de Jesus Sanchez-Dutan, a native and citizen of Ecuador, petitions

for review of the Board of Immigration Appeals’ order dismissing her appeal from

an immigration judge’s order denying her motion to reopen deportation

proceedings conducted in absentia. Our jurisdiction is governed by 8 U.S.C.

          *
             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).
§ 1252. We review for abuse of discretion the denial of a motion to reopen, and

review de novo constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-

92 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.

      The agency did not abuse its discretion in denying Sanchez-Dutan’s motion

to reopen based on lack of notice of her hearing, where the record shows that she

was personally served the Order to Show Cause, which contained the date and

location of her hearing, as well as her signature and fingerprint on the certificate of

service. See 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2) (a motion to reopen to rescind an

in absentia order may be filed at any time if “the alien demonstrates that he or she

did not receive notice”); 8 U.S.C. § 1252b(a)(2)(A) (1994) (notice of hearing shall

be given in person or sent by certified mail).

      The agency did not abuse its discretion in denying Sanchez-Dutan’s motion

to reopen to apply for adjustment of status, where her motion was filed more than

13 years after her final order of deportation. See 8 C.F.R. § 1003.23(b)(1) (a

motion to reopen must be filed within 90 days of a final order of deportation);

Matter of Monges-Garcia, 25 I. & N. Dec. 246 (BIA 2010) (the 90-day filing

deadline applies to motions to reopen in absentia deportation orders to apply for

adjustment of status, as no conflict exists between the 90-day deadline and former

8 U.S.C. § 1252b(e)(1)).


                                           2                                     09-72716
      Sanchez-Dutan’s contention that the agency applied the wrong legal

standards in denying the motion to reopen is not supported by the record.

      Because the agency did not abuse its discretion or commit any error in

denying Sanchez-Dutan’s motion to reopen, it follows that the agency did not

violate due process in denying the motion. See Lata v. INS, 204 F.3d 1241, 1246

(9th Cir. 2000) (to prevail on a due process challenge, an alien must show error and

prejudice).

      We lack jurisdiction to consider Sanchez-Dutan’s unexhausted contentions

that the IJ should have held an evidentiary hearing and that the immigration court

failed to notify her of a change in her hearing location. See Tijani v. Holder, 628

F.3d 1071, 1080 (9th Cir. 2010).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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