NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       DEC 16 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

NOE NOLBERTO CARRIAS-MAYORGA, No.                      18-70500

                Petitioner,                     Agency No. A072-994-335

 v.
                                                MEMORANDUM*
WILLIAM P. BARR, Attorney General,

                Respondent.

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

                          Submitted December 11, 2019**

Before:      WALLACE, CANBY, and TASHIMA, Circuit Judges.

      Noe Nolberto Carrias-Mayorga, a native and citizen of Guatemala, petitions

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

an immigration judge’s (“IJ”) decision denying his motion to reopen 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 and


      *
             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).
review de novo questions of law. Bonilla v. Lynch, 

, 581 (9th Cir.

2016). We deny in part and dismiss in part the petition for review.

      The agency did not abuse its discretion in denying Carrias-Mayorga’s

motion to reopen, where he concedes he was personally served with written notice

of his hearing. See 8 U.S.C. § 1252b(c)(3)(B) (1995) (An in absentia deportation

order may be rescinded “upon a motion to reopen filed at any time if the alien

demonstrates that the alien did not receive notice in accordance with subsection

(a)(2) of this section[.]”). Carrias-Mayorga’s contention that he was not provided

with written notice of his hearing in Spanish fails, where the notice, signed by the

IJ, states he was given written notice in both English and Spanish. See Kohli v.

Gonzales, 

, 1068 (9th Cir. 2007) (“In the absence of clear evidence

to the contrary, courts presume that public officers properly discharge their

duties[.]” (internal quotation marks and citation omitted)).

      We lack jurisdiction to review the agency’s denial of sua sponte reopening,

where Carrias-Mayorga does not raise a legal error that would invoke our

jurisdiction. See 

(the court can review BIA decisions

denying sua sponte reopening only for the limited purpose of reviewing the

reasoning behind the decision for legal or constitutional error).

      Carrias-Mayorga’s contention that the order to show cause (“OSC”) was

defective because it did not include a date and time for his initial hearing fails,


                                           2                                     18-70500
where the statute in effect in 1995 permitted the time of the hearing to be sent in a

separate notice after the OSC. Compare 8 U.S.C. § 1252b(a)(2)(A)(i) (1995)

(requiring the time at which proceedings will be held to be included in a

subsequent notice), with 8 U.S.C. § 1229(a)(1)(G)(i) (2019) (requiring the time at

which proceedings will be held to be included in a notice to appear (“NTA”)).

Accordingly, the holding of Pereira v. Sessions, 

(2018), which

considered requirements for an NTA after passage of the Illegal Immigration

Reform and Immigration Responsibility Act of 1996 (“IIRIRA”), does not apply to

Carrias-Mayorga, whose OSC was served in 1995, prior to IIRIRA’s enactment.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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