Bernal-Lopez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 4, 2023
• Docket: 21-55
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 4 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ARGENTINA BERNAL-LOPEZ, No. 21-55 Agency No. Petitioner, A203-522-401 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted April 20, 2023** Phoenix, Arizona

Before: TALLMAN, OWENS, and BADE, Circuit Judges.

Argentina Bernal-Lopez appeals a decision of the Board of Immigration

Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) denial of her motion

to reopen. We have jurisdiction under 8 U.S.C. § 1252, and we deny the

petition.

The BIA affirmed the IJ’s decision without an opinion, so we review the

* 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). IJ’s decision as the final agency action. See 8 C.F.R. § 1003.1(e)(4); Zehatye v.

Gonzales, 453 F.3d 1182, 1184 (9th Cir. 2006). We review the agency’s denial

of a motion to reopen for an abuse of discretion. Chandra v. Holder, 751 F.3d

1034, 1036 (9th Cir. 2014).

The agency abused its discretion by denying Bernal-Lopez’s motion to

reopen based on lack of notice.1 See 8 U.S.C. § 1229a(b)(5)(C)(ii). The

agency’s decision is contrary to Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th

Cir. 2004), which provided the basis of its decision. Although Bernal-Lopez’s

father misrepresented her age as seventeen to the IJ, unlike the minor petitioner

in Flores-Chavez, the notice of hearing was never provided to Bernal-Lopez.

See id. at 1153 (holding that “the regulations at issue require[] that the agency

serve notice both to the ‘juvenile,’ . . . and to the person to whom the regulation

authorizes release”).

Bernal-Lopez, who was not represented by counsel, was not personally

served with notice of hearing and notice was not mailed to her last address. See

Perez-Portillo v. Garland, 56 F.4th 788, 792 (9th Cir. 2022) (discussing notice

requirements); see also 8 U.S.C. §§ 1229(a)(2)(A), (c). Thus, the presumption

of regular service which applies in some circumstances does not apply here.

1 The agency did not abuse its discretion by denying the motion despite the government’s non-opposition to the motion. This case is distinguishable from the narrow holding in Matter of Yewondwosen, 21 I. & N. Dec. 1025, 1026–27 (BIA 1997). .

2 See B.R. v. Garland, 26 F.4th 827, 836 (9th Cir. 2022); Mejia–Hernandez v.

Holder, 633 F.3d 818, 822 (9th Cir. 2011) (discussing presumptions applicable

to service by certified and regular mail).

Additionally, Bernal-Lopez’s declaration provided sufficient evidence of

non-delivery of the notice of hearing, and the agency abused its discretion by

discrediting it. See Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005)

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

as true unless inherently unbelievable.”).

The circumstances of this case, however, do not warrant granting the

petition and remanding the matter to the BIA. Bernal-Lopez also moved to

reopen under 8 U.S.C. § 1229a(c)(7)(C)(ii) to pursue an application for asylum.

The agency denied that motion on the ground that Bernal-Lopez did not

establish a prima facie case for relief. See Najmabadi v. Holder, 597 F.3d 983,

986 (9th Cir. 2010) (discussing independent grounds for denying a motion to

reopen under 8 C.F.R. § 1003.2(c), including failure to demonstrate prima facie

eligibility). Bernal-Lopez does not challenge the determination on any ground.

This court need not remand to the agency when it “would be an idle and useless

formality.” See Gutierrez-Zavala v. Garland, 32 F.4th 806, 810 (9th Cir. 2022)

(explaining the rule that remand is not necessary as it applies in the immigration

context) (citation omitted). Considering that Bernal-Lopez does not challenge

her removability or challenge the determination that she failed to establish

prima facie eligibility for relief, this is not a case where “the denial [of a motion

3 to reopen] leads to the unconscionable result of deporting an individual eligible

for relief.” Singh v. INS, 295 F.3d 1037, 1040 (9th Cir. 2002).

PETITION DENIED.