Abdulkader v. Gonzales

Ninth Circuit

Abdulkader v. Gonzales

155 F. App'x 342

CourtCourt of Appeals for the Ninth Circuit

DecidedDecember 12, 2005

DocketNo. 04-74033

StatusPublished

This text of 155 F. App'x 342 (Abdulkader v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Abdulkader v. Gonzales, 155 F. App'x 342 (9th Cir. 2005).

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Opinion

MEMORANDUM

**

Mohamed Abdulkader, a native and citizen of Yemen, petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming an immigration judge’s (“IJ”) order denying his motion to reopen proceedings in which he was ordered deported in absentia and subsequently deported. We review the denial of a motion to reopen for abuse of discretion. Celis-Castellano v. Ashcroft, 298 F.3d 888, 890 (9th Cir.2002). We deny the petition for review.

The BIA did not abuse its discretion in determining that Abdulkader’s in absentia order of deportation was lawfully executed in 1997 because Abdulkader failed to provide evidence to support his contentions that notice of his hearing was sent to the incorrect address and that he submitted multiple changes-of-address to the government. See Farhoud v. INS, 122 F.3d 794, 796 (9th Cir.1997). The BIA therefore correctly determined that the IJ did not have jurisdiction over Abdulkader’s motion to reopen filed in 2002. See 8 C.F.R. § 3.23(b)(1) (2002) (“A motion to reopen or reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.”); Mendez v. INS, 563 F.2d 956, 958-59 (9th Cir.1977) (statutes that divest jurisdiction upon “departure from the United States” can do so only upon legally executed departure).

We lack jurisdiction to consider Abdulkader’s claims that he did not receive the [343]*343Order to Show Cause and that he was deprived of effective assistance of counsel in filing his 1997 motion to reopen because he failed to raise these issues before the agency. See Vargas v. INS, 831 F.2d 906, 907-08 (9th Cir.1987).

Abdulkader’s remaining contentions lack merit.

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

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MEMORANDUM

**

Mohamed Abdulkader, a native and citizen of Yemen, petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming an immigration judge’s (“IJ”) order denying his motion to reopen proceedings in which he was ordered deported in absentia and subsequently deported. We review the denial of a motion to reopen for abuse of discretion. Celis-Castellano v. Ashcroft, 298 F.3d 888, 890 (9th Cir.2002). We deny the petition for review.

The BIA did not abuse its discretion in determining that Abdulkader’s in absentia order of deportation was lawfully executed in 1997 because Abdulkader failed to provide evidence to support his contentions that notice of his hearing was sent to the incorrect address and that he submitted multiple changes-of-address to the government. See Farhoud v. INS, 122 F.3d 794, 796 (9th Cir.1997). The BIA therefore correctly determined that the IJ did not have jurisdiction over Abdulkader’s motion to reopen filed in 2002. See 8 C.F.R. § 3.23(b)(1) (2002) (“A motion to reopen or reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.”); Mendez v. INS, 563 F.2d 956, 958-59 (9th Cir.1977) (statutes that divest jurisdiction upon “departure from the United States” can do so only upon legally executed departure).

We lack jurisdiction to consider Abdulkader’s claims that he did not receive the [343]*343Order to Show Cause and that he was deprived of effective assistance of counsel in filing his 1997 motion to reopen because he failed to raise these issues before the agency. See Vargas v. INS, 831 F.2d 906, 907-08 (9th Cir.1987).

Abdulkader’s remaining contentions lack merit.

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

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