                                                                            FILED
                             NOT FOR PUBLICATION                            DEC 23 2016

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



                             FOR THE NINTH CIRCUIT


ERICK OSWALDO OSORIO LIMA,                       No.   13-73555

              Petitioner,                        Agency No. A072-536-295

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Submitted December 14, 2016**

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

      Erick Oswaldo Osorio Lima, a native and citizen of Guatemala, petitions pro

se for review of the Board of Immigration Appeals’ order dismissing his appeal

from an immigration judge’s 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 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, and

review de novo claims of due process violations 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 or violate due process in denying

Osorio Lima’s motion to reopen as untimely. Osorio Lima filed his motion more

than 17 years after his final order of removal, and the record reflects that he was

personally served the Notice of Hearing, which contained the date and location of

his June 26, 1995 hearing. See 8 C.F.R. § 1003.23(b)(1) & (b)(4)(iii)(A)(2); 8

U.S.C. § 1252b(a)(2)(A) (1994) (notice of hearing shall be given in person or, if

personal service is not practicable, sent by certified mail); Matter of M-S-, 22 I. &

N. Dec. 349, 356-57 (BIA 1998) (a motion to reopen an in absentia order to apply

for new forms of relief is subject to the 90-day motion to reopen deadline); Lata v.

INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail

on due process claim).

      Osorio Lima’s contention that the agency relied on factual and legal errors in

denying the motion is not supported by the record.

      Osorio Lima’s contention that the agency violated due process by denying

his motion before he could file supplemental documentation fails for lack of


                                           2                                    13-73555
prejudice, where he did not represent what evidence he intended to submit. See

Lata at 1246.

      We lack jurisdiction to consider Osorio Lima’s unexhausted contention

regarding his eligibility for an I-130 visa petition. See Tijani v. Holder, 628 F.3d

1071, 1080 (9th Cir. 2010) (this court lacks jurisdiction to consider claims not

raised before the agency in administrative proceedings).

      In light of our disposition, we do not reach Osorio Lima’s remaining

contentions regarding his prima facie eligibility for relief.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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