Aldo Martinez Ovando v. Eric Holder, Jr.

MEMORANDUM

Aldo Martinez Ovando, a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals dismissing his appeal from an immigration judge’s decision denying his motion to reopen removal 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 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 Martinez Ovando’s motion to reopen as untimely where it was filed more than three years after his order of removal became final, and he failed to establish any statutory or regulatory basis to excuse the untimeliness of his motion. See 8 C.F.R. § 1003.23 (b)(4)(ii), (iii)(A); 8 U.S.C. § 1229a(b)(5)(C). In addition, the agency did not abuse its discretion by determining reopening was not warranted based on lack of notice where Martinez Ovando did not submit an affidavit or any evidence in support of his claim that he did not receive notice of his hearing. See 8 C.F.R. § 1003.23 (b)(3)…