                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                              FOR THE NINTH CIRCUIT                         FEB 24 2014

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

ANDREY CHERBA,                                   No. 12-73352

               Petitioner,                       Agency No. A071-378-762

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

               Respondent.


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

                             Submitted February 18, 2014**

Before:        ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.

       Andrey Cherba, native of the former USSR and citizen of Ukraine, petitions

pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing

his appeal from an immigration judge’s (“IJ”) decision denying his motion to

reopen removal proceedings conducted in absentia. Our jurisdiction is governed


          *
             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).
by 8 U.S.C. § 1252. See Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir.

2007). We review for abuse of discretion the denial of a motion to reopen, and

review de novo constitutional claims and 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.

      The agency did not abuse its discretion in denying reopening based on lack

of notice because Cherba was served in person with the Notice to Appear (“NTA”),

which specified the charges against him and warned him explicitly of the

consequences of his failure to appear. See Salta v. INS, 314 F.3d 1076, 1079 (9th

Cir. 2002) (citing 8 U.S.C. § 1229a(b)(5)(A), (C)); see also 8 U.S.C.

§ 1229(a)(1)(D) (NTA shall include charges against the alien and the statutory

provisions alleged to have been violated). Cherba’s contention that his NTA was

defective because it did not specify the date and time of his removal hearing is

foreclosed by Popa v. Holder, 571 F.3d 890, 896 (9th Cir. 2009) (NTA and hearing

notice combined satisfied requirements of 8 U.S.C. § 1229(a)(1)(G)(i)).

      The agency did not abuse its discretion in denying Cherba’s motion to

reopen because he failed to establish that “exceptional circumstances” caused his

failure to appear. See 8 U.S.C. §§ 1229a (b)(5)(C)(i), (e)(1); see also

Valencia-Fragoso v. INS, 321 F.3d 1204, 1205-06 (9th Cir. 2003) (per curiam)


                                          2                                   12-73352
(holding that confusion as to a hearing time does not amount to exceptional

circumstances). The BIA did not abuse its discretion in declining to remand so that

Cherba could submit additional evidence in support of his claim of exceptional

circumstances, where the additional evidence was not new or previously

unavailable and had not been submitted before the IJ. See 8 C.F.R. § 1003.2(c)(1).

      To the extent Cherba seeks to raise an ineffective assistance of counsel claim

or raise new grounds for establishing exceptional circumstances, we lack

jurisdiction to consider these unexhausted claims. See Tijani v. Holder, 628 F.3d

1071, 1080 (9th Cir. 2010).

      We do not consider the extra-record evidence submitted for the first time

with Cherba’s opening brief because the court’s review is limited to the

administrative record. See 8 U.S.C. § 1252(b)(4)(A).

      In light of this disposition, we do not reach Cherba’s remaining contentions.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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