Rogelio Simon-Francisco v. Eric Holder, Jr. , 425 F. App'x 583 ( 2011 )

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NOT FOR PUBLICATION MAR 29 2011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.
2 09-70528