Estela Godinez Domingo v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 20, 2023
• Docket: 20-70901
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ESTELA GODINEZ DOMINGO; No. 20-70901 RODOLFO HERNANDEZ GODINEZ, Agency Nos. A215-691-185 Petitioners, A215-691-186

v. MEMORANDUM * MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 15, 2023** Portland, Oregon

Before: TALLMAN, RAWLINSON, and SUNG, Circuit Judges.

Petitioners Estela Godinez Domingo and Rodolfo Hernandez Godinez

petition for review of the Board of Immigration Appeals’ (BIA) decision

dismissing their appeal of the Immigration Judge’s (IJ) denial of Petitioners’

* 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). motion to reopen and request to rescind their in absentia orders of removal to

Guatemala. We review the BIA’s ruling on a motion to reopen for abuse of

discretion and “will reverse the denial of a motion to reopen only if the Board

acted arbitrarily, irrationally, or contrary to law.” Martinez-Hernandez v. Holder,

778 F.3d 1086, 1088 (9th Cir. 2015) (per curiam) (internal citations omitted). For

the reasons below, we deny the petition.

1. The BIA did not abuse its discretion in denying Petitioners’ motion to

reopen because Petitioners did not show exceptional circumstances that would

excuse their failure to appear at their merits hearing. 8 U.S.C. §§ 1229a(b)(5),

(e)(1). Petitioners rely on Singh v. INS, 295 F.3d 1037, 1040 (9th Cir. 2002), to

argue that missing a hearing by mistake can satisfy the exceptional circumstances

requirement to reopen. But Singh limited its holding to circumstances where the

noncitizen was otherwise eligible for immigration relief and “the denial [of a

motion to reopen] leads to the unconscionable result of deporting [that]

individual.” Id. Because Petitioners are not otherwise entitled to relief, the BIA’s

denial of their motion to reopen does not lead to an unconscionable result. See

Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996) (holding no exceptional

circumstances where a noncitizen was one hour late “due to traffic congestion and

2 trouble finding parking”). 1

2. Petitioners were not deprived of their right to procedural due process

when they received a Notice to Appear (NTA) in English. It is undisputed that

Petitioners do not speak English. But as Petitioners acknowledge, they had

successfully attended previous immigration hearings; knew about their December

6, 2018 hearing despite receiving an NTA in English; received the NTA for their

November 20, 2018 hearing before the date of the hearing; and were able to ask

their attorney for assistance with understanding the new notice. The new notice

therefore was reasonably calculated to reach Petitioners and did not violate their

due process rights. Khan v. Ashcroft, 374 F.3d 825, 828-29 (9th Cir. 2004)

(holding agency could reasonably assume English NTA would provide sufficient

notice where noncitizen had received and complied with earlier notices in English).

PETITION DENIED.

1 We reach the same result even assuming Petitioners attempted to go to the courthouse in person after their attorney informed them of the actual time of their merits hearing.