Cesareo Tapia-Ibarra v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 30, 2018
• Docket: 16-73410
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 30 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CESAREO TAPIA-IBARRA, AKA Julio No. 16-73410 Cesar-Hernandez, Agency No. A205-489-712 Petitioner,

v. MEMORANDUM*

MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Submitted November 27, 2018**

Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.

Cesareo Tapia-Ibarra, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s order denying his motion to reopen removal proceedings

conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for

* 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). abuse of discretion the denial of a motion to reopen, and we review de novo

questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).

We deny the petition for review.

The agency did not err or abuse its discretion in denying Tapia-Ibarra’s

motion to reopen for failure to establish exceptional circumstances, where he did

not show that he failed to appear at his hearing due to circumstances beyond his

control. See 8 C.F.R. § 1003.23(b)(4)(ii); 8 U.S.C. § 1229a(e)(1) (defining

exceptional circumstances as circumstances beyond the control of the alien);

Valencia-Fragoso v. INS, 321 F.3d 1204, 1205-06 (9th Cir. 2003) (no exceptional

circumstances where petitioner was late to her hearing due to confusion about the

time and did not show eligibility for relief).

We reject Tapia-Ibarra’s contentions that the BIA failed to consider relevant

evidence, that Singh v. INS, 295 F.3d 1037 (9th Cir. 2002), controls the result of

his case, or that the agency otherwise applied the wrong standard. See Najmabadi

v. Holder, 597 F.3d 983, 990-91 (9th Cir. 2010) (holding the BIA adequately

considered evidence and sufficiently announced its decision); Fernandez v.

Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (petitioner did not overcome the

presumption that the BIA did review the record); Valencia-Fragoso, 321 F.3d at

2 16-73410 1205-06 (distinguishing Singh).

PETITION FOR REVIEW DENIED.

3 16-73410