                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 02 2010

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




                             FOR THE NINTH CIRCUIT



MAGIN ORELLANA-GEVARA,                           No. 08-70364

               Petitioner,                       Agency No. A099-469-341

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

               Respondent.



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

                             Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Magin Orellana-Gevara, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ order affirming without opinion an

immigration judge’s (“IJ”) decision denying his motion to reopen removal

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 questions of law, including claims of due process violations.

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 IJ did not abuse her discretion by denying Orellana-Gevara’s motion to

reopen because the notice of hearing was addressed to Orellana-Gevara in care of

his adult custodian at their shared address of record. See 8 U.S.C. § 1229(c)

(notice by mail to most recent address provided by alien sufficient); cf. Flores-

Chavez v. Ashcroft, 362 F.3d 1150, 1157-58 (9th Cir. 2004) (notice of hearing

served on minor insufficient where not also served on adult custodian).

      To the extent Orellana-Gevara sought to reopen based on exceptional

circumstances, the motion was filed more than 180 days after the IJ’s July 28,

2006, order, see 8 C.F.R. § 1003.23(b)(4)(ii), and Orellana-Gevara failed to

demonstrate grounds for equitably tolling the filing deadline, see Iturribarria v.

INS, 321 F.3d 889, 897 (9th Cir. 2003).

      The denial of Orellana-Gevara’s motion to reopen therefore did not violate

due process. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error

for a due process violation).

      We lack jurisdiction to review Orellana-Gevara’s contention that the IJ


                                           2                                    08-70364
violated due process during the April 21, 2006, hearing, because Orellana-Gevara

failed to raise this issue before the agency. See Barron v. Ashcroft, 358 F.3d 674,

678 (9th Cir. 2004).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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