                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        APR 20 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

MARGARITO MARTIN-FUNES,                         No.    15-72441

                Petitioner,                     Agency No. A073-985-991

 v.
                                                MEMORANDUM *
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                              Submitted April 11, 2017**

Before:      GOULD, CLIFTON, and HURWITZ, Circuit Judges.

      Margarito Martin-Funes, a native and citizen of Guatemala, petitions 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. We have jurisdiction under 8 U.S.C. § 1252.



      *
             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).
We review for abuse of discretion the denial of a motion to reopen and review de

novo constitutional claims. 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 in denying Martin-Funes’s motion to

reopen, based on lack of notice, where the record shows he was personally served

an Order to Show Cause (“OSC”) with the required advisals, and he was served

notice of his hearing with the required advisals. See 8 C.F.R.

§ 1003.23(b)(4)(iii)(A)(2) (a motion to reopen to rescind an in absentia order may

be filed at any time if “the alien demonstrates that he or she did not receive

notice”); 8 U.S.C. § 1252(a)(2)(A) (1996) (written notice shall be given to the alien

in the order to show cause or otherwise, of the time and place at which the

proceedings will be held, and the consequences of the failure to appear at such

proceedings.) Accordingly, Martin-Funes’s due process claim fails. See Lata v.

I.N.S., 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process challenge,

an alien must show error and prejudice).

      To the extent that Martin-Funes now contends that the signatures on the

OSC and the change of address form are not his, we lack jurisdiction to consider

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

2010) (no jurisdiction to review legal claims not presented in the petitioner’s

administrative proceedings before the BIA).


                                           2                                  15-72441
      To the extent that Martin-Funes contends that he was the victim of

ineffective assistance from a notary, we lack jurisdiction to consider that

unexhausted contention. See id.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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