                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 29 2011

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




                             FOR THE NINTH CIRCUIT



ROGELIO SIMON-FRANCISCO,                         No. 09-70528

               Petitioner,                       Agency No. A070-942-853

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

               Respondent.



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

                             Submitted March 8, 2011 **

Before:        FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.

       Rogelio Simon-Francisco, a native and citizen of Guatemala, petitions for

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

immigration judge’s order denying his motion to reopen deportation proceedings

conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for


          *
             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).
abuse of discretion the denial of a motion to reopen, and review de novo due

process claims. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny

the petition for review.

      The agency did not abuse its discretion in denying Simon-Francisco’s

motion to reopen because the record shows that he was personally served with an

Order to Show Cause and Notice of Hearing, see 8 U.S.C. §§ 1252b(a)(1)-(3)

(1995), and he also failed to allege exceptional circumstances for missing his

hearing, see 8 U.S.C. § 1252b (c)(3)(A) (1995).

      Simon-Francisco’s contention that the agency violated due process by failing

to consider his declaration fails where the record shows that a declaration was

never filed with the agency. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2003)

(requiring error to prevail on a due process violation).

      Simon-Francisco’s remaining contention is unavailing.

      PETITION FOR REVIEW DENIED.




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