Antonia Josefa Diego-Miguel v. Pamela Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 4, 2026
• Docket: 21-70340
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 4 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANTONIA JOSEFA DIEGO-MIGUEL; No. 21-70340 JUAN FIDELINO PEDRO-DIEGO; MATEO RODRIGO PEDRO-DIEGO, Agency Nos. A213-152-820 A213-152-821 Petitioners, A213-152-822

v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Submitted February 2, 2026** Portland, Oregon

Before: CHRISTEN, HURWITZ, and DESAI, Circuit Judges.

Petitioners Antonia Josefa Diego-Miguel (“Diego-Miguel”) and her two

children, Juan Fidelino Pedro Diego and Mateo Rodrigo Pedro Diego, petition for

review of a Board of Immigration Appeals (“BIA”) decision dismissing their appeal

* 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). of an immigration judge’s (“IJ”) denial of a motion to reopen their in absentia

removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review the

denial of a motion to reopen for abuse of discretion. Arredondo v. Lynch, 824 F.3d

801, 805 (9th Cir. 2016). We deny the petition.

1. An in absentia removal order may be rescinded “if the alien

demonstrates that the failure to appear was because of exceptional circumstances.”

8 U.S.C. § 1229a(b)(5)(C)(i). To determine whether a petitioner has established

exceptional circumstances, the BIA must consider the totality of the circumstances.

Celis-Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir. 2002). The agency

considered the totality of the circumstances surrounding petitioners’ failure to attend

their hearing and concluded that petitioners failed to demonstrate that their mail

arrangement was a circumstance out of their control or that Diego-Miguel missed

the hearing due to debilitating pregnancy complications. On this record, the agency’s

conclusion was not “arbitrary, irrational, or contrary to law.” Arredondo, 824 F.3d

at 805 (citation modified). The BIA therefore did not abuse its discretion.

2. An in absentia removal order may also be rescinded if the noncitizen

demonstrates that they did not receive statutorily adequate notice. 8 U.S.C.

§ 1229a(b)(5)(C)(ii). The BIA did not abuse its discretion by affirming the denial of

petitioners’ motion to reopen because they did not establish that they lacked notice

of their hearing.

2 First, reopening is not warranted if a notice to appear (“NTA”) states that

immigration proceedings will take place at a time and place “to be set” and a notice

of hearing (“NOH”) detailing the time and place of immigration proceedings is later

sent. Campos-Chaves v. Garland, 602 U.S. 447, 461–62 (2024). The agency

properly concluded that petitioners’ NTAs were not defective solely because they

listed a time and date “to be set” because they were later sent NOHs that detailed the

time and place of their hearings.

Second, the agency concluded that petitioners did not rebut the presumption

of delivery after considering “all relevant evidence submitted,” including

petitioners’ “statement” through counsel and circumstantial evidence surrounding

petitioners’ claim of nonreceipt. See Matter of M-R-A-, 24 I. & N. Dec. 665, 673–74

(BIA 2008); Perez-Portillo v. Garland, 56 F.4th 788, 793 (9th Cir. 2022). The NOHs

were sent to the address Diego-Miguel provided, they were never returned as

undeliverable, and petitioners failed to submit an affidavit from her housemate who

was allegedly responsible for the mail or any other corroborating evidence of their

nonreceipt of the NOHs. On this record, the agency’s conclusion was not “arbitrary,

irrational, or contrary to law.” See Arredondo, 824 F.3d at 805 (citation modified).

Petition DENIED.1

1 Petitioners’ motion for miscellaneous relief (Dkt. 62) is DENIED.