NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        FEB 21 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

BORIS ERNESTO GUARDADO-                         No.    16-70706
SANCHEZ,
                                                Agency No. A070-408-558
                Petitioner,

 v.                                             MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                          Submitted February 13, 2018**


Before:      LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.

      Boris Ernesto Guardado-Sanchez, a native and citizen of El Salvador,

petitions for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing his appeal from an immigration judge’s order denying his motions to



      *
             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).
reopen and reconsider deportation proceedings conducted in absentia. Our

jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the

denial of a motion to reopen. Mohammed v. Gonzales, 

, 791-92 (9th

Cir. 2005). We deny in part, grant in part, and dismiss in part the petition for

review.

      The BIA did not abuse its discretion in denying Guardado-Sanchez’s motion

to reopen proceedings conducted in absentia where the record establishes that his

attorney was provided with the notices of his hearing, and where he has not

demonstrated reasonable cause for his failure to appear at his hearing. 8 U.S.C. §

1252(b) (1990); 8 C.F.R. § 3.24 (1987).

      The BIA abused its discretion in denying Guardado-Sanchez’s motion to

reopen to seek special rule cancellation of removal under the Nicaraguan

Adjustment and Central American Relief Act (“NACARA”). The record contains

documents that demonstrate that it is more likely than not that Guardado-Sanchez

was in Temporary Protected Status prior to October 31, 1991. See 8 C.F.R. §

1240.60 (Salvadoran nationals that applied for temporary protected status on or

before October 31, 1991 are deemed to be registered ABC class members). The

BIA’s contrary determination, that Guardado-Sanchez did not demonstrate that he

was prima facie eligible for NACARA relief for not being a registered ABC class

member is unsupported by the record. Albillo-De Leon v. Gonzales, 

,


                                           2                                       16-70706
1093-94 (9th Cir. 2005) (a prima facie showing of NACARA eligibility “need not

be conclusive but need suggest only that it would be worthwhile to reopen

proceedings.” (internal quotations omitted)).

      We lack jurisdiction to consider Guardado-Sanchez’s unexhausted

contentions that his former attorney provided ineffective assistance and that the

immigration judge that ordered him removed in absentia should have instead

administratively closed his case. Tijani v. Holder, 

, 1080 (9th Cir.

2010) (the court lacks jurisdiction to consider legal claims not presented to the

agency in the alien’s proceedings).

      We lack jurisdiction to review the BIA’s discretionary denial of sua sponte

reopening. Bonilla v. Lynch, 

, 588 (9th Cir. 2016) (the court has

jurisdiction to review BIA decisions denying sua sponte reopening only for the

limited purpose of reviewing the reasoning behind the decision for legal or

constitutional error). Guardado-Sanchez’s contention that the BIA used an

incorrect legal standard in denying sua sponte reopening is unsupported by the

record, and therefore does not raise a colorable legal challenge to invoke

jurisdiction.

      Each party shall bear its own costs for this petition for review.

      PETITION FOR REVIEW DENIED in part; GRANTED in part; and

DISMISSED in part.


                                          3                                    16-70706