                                                                            FILED
                             NOT FOR PUBLICATION                            DEC 15 2014

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



                              FOR THE NINTH CIRCUIT


EDUARDO NEMESIO CASTILLO-                        No. 08-70838
TRIGOSO,
                                                 Agency No. A072-142-425
               Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


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

                             Submitted December 9, 2014**

Before:        WALLACE, LEAVY, and BYBEE, Circuit Judges.

       Eduardo Nemesio Castillo-Trigoso, a native and citizen of Peru, petitions for

review of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s (“IJ”) decision denying his 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.

Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir. 2000) (per curiam). We deny in part

and dismiss in part the petition for review.

      The agency did not abuse its discretion in denying Castillo-Trigoso’s moiton

to reopen on the ground that he failed to establish improper notice, where his

counsel of record was properly served by certified mail with written notice of the

February 15, 1996 hearing. See 8 U.S.C. § 1252b(a)(2)(A) (1994) (written notice

shall be given by certified mail to the alien or to the alien’s counsel of record);

Garcia, 222 F.3d at 1209 (notice to attorney of record constitutes notice to alien).

      Because Castillo-Trigoso did not challenge before the BIA the IJ’s

dispositive determination that he failed to establish the due diligence necessary for

equitable tolling of the motions deadline, any such challenge is not exhausted and

we do not have jurisdiction to consider it. See Zara v. Ashcroft, 383 F.3d 927, 930-

31 (9th Cir. 2004); 8 U.S.C. § 1252(d)(1).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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