Faycal Atorky v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 17, 2021
• Docket: 18-71203
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FAYCAL ATORKY, No. 18-71203

Petitioner, Agency No. A205-272-480

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

Respondent.

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

Submitted December 14, 2021**

Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.

Faycal Atorky, a native and citizen of Morocco, petitions for review of the

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

immigration judge’s (“IJ”) decision denying his motion to reopen and rescind his

in absentia removal order. Our jurisdiction is governed by 8 U.S.C. § 1252. We

* 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). review for abuse of discretion the denial of a motion to reopen. Cano-Merida v.

INS, 311 F.3d 960, 964 (9th Cir. 2002). We deny in part and dismiss in part the

petition for review.

The BIA did not abuse its discretion in denying Atorky’s motion to reopen

removal proceedings conducted in absentia, where Atorky failed to demonstrate

exceptional circumstances to excuse his absence from the hearing. See 8 U.S.C.

§ 1229a(b)(5)(C); Arredondo v. Lynch, 824 F.3d 801, 805-06 (9th Cir. 2016)

(setting forth the standards governing when a motion to reopen may rescind an in

absentia removal order and discussing exceptional circumstances); see also Celis-

Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir. 2002) (concluding BIA did not

abuse its discretion in determining that petitioner’s evidence, consisting of a

declaration and a medical form, failed to establish that his asthma attack amounted

to “exceptional circumstances”).

We reject as unsupported by the record Atorky’s contentions that the BIA

applied an incorrect standard or deprived him of due process by failing to consider

the totality of the circumstances.

We lack jurisdiction to review the BIA’s denial of sua sponte reopening,

where Atorky does not raise a claim of legal or constitutional error underlying the

2 18-71203 BIA’s decision. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).

The stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 18-71203