Cajahuaringa v. Gonzales

135 F. App'x 931

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 22, 2005
• Docket: No. 04-71439
• Status: Published

Opinion

MEMORANDUM

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Jose Carlos Cajahuaringa, a native and citizen of Peru, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen proceedings in which he was deported in absentia. We have jurisdiction under former 8 U.S.C. § 1105a(a). Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). We review for an abuse of discretion, Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000), and we deny in part and grant in part the petition for review.

The BIA did not abuse its discretion in denying the motion to reopen because the record establishes that notice of the November 20, 2001 hearing was properly served on Cajahuaringa and his former counsel. See 8 U.S.C. § 1252b (repealed 1996); Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir.2000) (per curiam) (rejecting claim of inadequate notice where the government served written notice of the hearing on applicant’s counsel; noting that applicant did not raise an ineffective assistance of counsel claim); Arrieta v. INS, 117 F.3d 429, 430-31 (9th Cir.1997) (per curiam) (notice of hearing sufficient when notice sent by certified mail to alien’s last known address).

The BIA failed to address Cajahuaringa’s motion to remand to seek adjustment of status. The BIA abuses its discretion if it fails to “indicate with specificity that it heard and considered petitioner’s claims.” See Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir.2004). Accordingly, we remand to the BIA to consider Cajahuaringa’s motion to remand.

PETITION FOR REVIEW DENIED in part; GRANTED in part.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.