Alfonsa Sanchez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 26, 2020
• Docket: 17-70047
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 26 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALFONSA SANCHEZ, No. 17-70047

Petitioner, Agency No. A070-924-260

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

Respondent.

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

Submitted January 21, 2020** Pasadena, California

Before: RAWLINSON, CLIFTON, and BRESS, Circuit Judges.

Alfonsa Sanchez, a native and citizen of Mexico, petitions for review of an

order of the Board of Immigration Appeals denying her motion to reopen and

rescind an in absentia order of deportation. The order was issued in 1995 after

* 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). Sanchez failed to attend her immigration hearing. More than 17 years later,

Sanchez filed the motion to reopen and rescind that order.

The IJ denied the motion to reopen, holding that it was untimely and that

Sanchez failed to demonstrate that equitable tolling of the filing deadline was

warranted. The IJ held also that affidavits submitted by Sanchez and her children

did not overcome the strong presumption of effective service of the hearing notice.

The BIA affirmed the IJ’s decision and dismissed the appeal. This Court reviews

the denial of a motion to reopen for abuse of discretion. Malty v. Ashcroft, 381

F.3d 942, 945 (9th Cir. 2004).

I. Notice of the Hearing

“[W]here service of a notice of a deportation proceeding is sent by certified

mail through the United States Postal Service and there is proof of attempted

delivery and notification of certified mail, a strong presumption of effective service

arises.” Matter of Grijalva, 21 I&N Dec. 27, *37 (BIA 1995); see also Arrieta v.

INS, 117 F.3d 429, 431 (9th Cir. 1997) (“[N]otice by certified mail sent to an

alien’s last known address can be sufficient under the Act . . . ”). In this petition,

Sanchez acknowledges that “the notice of hearing was sent via certified mail

through the United States Postal Service and delivered to [her] last known

2 address.” She argues, however, that the BIA erred in failing to afford the affidavits

of her and her children their proper weight.

“[F]acts presented in affidavits supporting a motion to reopen must be

accepted as true unless inherently unbelievable.” Tadevosyan v. Holder, 743 F.3d

1250, 1256 (9th Cir. 2014) (internal quotation omitted). The IJ and BIA did not err

in concluding that the affidavits were inherently unbelievable, given that they, inter

alia: (1) were submitted only after the IJ had identified a lack of similar evidence

needed to overcome the strong presumption of effective service and purported to

describe events that had occurred more than 17 years in the past; (2) contradicted

Sanchez’s previous assertions in court filings as to why she did not receive the

hearing notice; and (3) offered no explanation as to whether Sanchez attempted to

attend the hearing which she knew was originally scheduled for April 21, 1995, at

which she presumably would have learned of the deportation order that had been

entered days earlier.

II. Reopening on the Basis of Exceptional Circumstances

Sanchez argues also that exceptional circumstances prevented her from

appearing at the immigration hearing. She did not file her motion within the 180-

day deadline for seeking relief on this basis, but instead did so more than 17 years

3 after entry of the deportation order. Nevertheless, she claims that she exhibited

due diligence and that the Court should therefore equitably toll the filing deadline.

As stated by the IJ, “[n]either Respondent’s Motion to Reopen or her appeal

brief to the BIA offers any explanation as to how and when she discovered she was

ordered deported in absentia on April 18, 1995, or why she waited until March 26,

2013 to file the Motion to Reopen.” In this petition, she argues that “circumstantial

evidence demonstrates that it is more likely than not that [she] received ineffective

counsel in filing the request to change venue” in 1995. The only evidence

indicating that Sanchez retained a lawyer in 1995 is a certificate of service sent by

a “paralegal” to the Immigration Court. Even if we were to accept that a lawyer

was involved in filing the motion to change venue, Sanchez does not claim that the

lawyer informed her not to attend the immigration hearing that she was aware of.

Whatever can be said of the “circumstantial evidence” surrounding these events,

the BIA did not err in determining that Sanchez failed to show that she acted with

due diligence in submitting her motion more that 17 years after the deadline to do

so had passed.

Sanchez’s remaining arguments are without merit.

PETITION DENIED.