Alba Maldonado-Mendoza v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 17, 2019
• Docket: 17-73161
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 17 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALBA LUZ MALDONADO-MENDOZA, No. 17-73161

Petitioner, Agency No. A078-283-413

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

Respondent.

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

Submitted July 15, 2019**

Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.

Alba Luz Maldonado-Mendoza, a native and citizen of Honduras, petitions

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

appeal from an immigration judge’s order denying her motion to reopen removal

proceedings conducted in absentia. We have jurisdiction under 8 U.S.C.

§ 1252. We review for abuse of discretion the denial of a motion to reopen.

* 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). Sembiring v. Gonzales, 499 F.3d 981, 985 (9th Cir. 2007). We deny the petition

for review.

The agency did not err or abuse its discretion in denying Maldonado-

Mendoza’s motion to reopen based on lack of notice, where the record indicates

that the notice of hearing was properly served by mail on her counsel of record at

the time. See 8 U.S.C. § 1229a(b)(5)(A); 8 C.F.R. § 1003.26(c)(2) (notice is

sufficient for in absentia purposes when written notice is “provided to the alien or

the alien’s counsel of record”); Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir. 2000)

(notice of hearing is properly served if it is served on alien’s counsel of record).

Because service on her counsel of record is dispositive, we do not reach

Maldonado-Mendoza’s contentions regarding whether she rebutted the

presumption of service by mail of the notice of hearing to her last reported address.

See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies

are not required to decide issues unnecessary to the results they reach).

To the extent Maldonado-Mendoza contends her in absentia order should be

rescinded due to ineffective assistance of counsel, that contention is not properly

before us. See Solorio-Ruiz v. Sessions, 881 F.3d 733, 738 (9th Cir. 2018) (review

is limited to the grounds relied upon by the BIA).

2 17-73161 The agency did not err or abuse its discretion in denying Maldonado-

Mendoza’s motion to reopen based on changed country conditions, where she did

not establish prima facie eligibility for asylum. See Toufighi v. Mukasey, 538 F.3d

988, 996-97 (9th Cir. 2008) (evidence must demonstrate prima facie eligibility for

relief to warrant reopening based on changed country conditions); Bhasin v.

Gonzales, 423 F.3d 977, 984 (9th Cir. 2005) (an applicant must generally show an

individualized, rather than a generalized, risk of persecution to establish prima

facie eligibility for asylum or withholding). Maldonado-Mendoza’s contention

that the BIA improperly required her to show conclusive evidence of future

persecution is not supported by the record.

The BIA did not engage in impermissible factfinding, where the BIA

properly accepted the facts in Maldonado-Mendoza’s affidavit regarding her

asylum claim as true and determined that her evidence was insufficient to warrant

reopening. See 8 C.F.R. § 1003.2(c)(1); Bhasin, 423 F.3d at 987.

PETITION FOR REVIEW DENIED.

3 17-73161