                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUL 12 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

HERBERT ORLANDO HERRERA-                        No.    16-72429
VENTURA,
                                                Agency No. A099-664-551
                Petitioner,

 v.                                             MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                               Submitted July 10, 2018**

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

      Herbert Orlando Herrera-Ventura, a native and citizen of El Salvador,

petitions for review of the Board of Immigration Appeals’ order dismissing his

appeal from an immigration judge’s order 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 Ninth Circuit Rule 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.

Sembiring v. Gonzales, 499 F.3d 981, 985 (9th Cir. 2007). We deny in part and

dismiss in part the petition for review.

       The agency did not abuse its discretion in denying Herrera-Ventura’s

motion to reopen based on lack of notice, where he did not provide sufficient

evidence to rebut the presumption of effective service. See id. at 988-89

(identifying factors relevant to evaluating a petitioner’s rebuttal of the presumption

of effective delivery); Carrillo-Gonzalez v. INS, 353 F.3d 1077, 1079 (9th Cir.

2003) (statements by counsel are not evidence).

      To the extent Herrera-Ventura contends that the agency should have

permitted him to file an otherwise untimely motion to reopen based on changed

conditions in El Salvador, we lack jurisdiction to consider this unexhausted

contention. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (this court

lacks jurisdiction to review contentions not raised before the agency).

      In light of this disposition, we do not reach Herrera-Ventura’s remaining

contentions regarding eligibility for relief.

      Herrera-Ventura’s request to stay his removal is denied as unnecessary. The




                                           2                                   16-72429
temporary stay of removal will expire upon issuance of the mandate.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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