Jogindra Singh v. Pamela Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 12, 2025
• Docket: 20-72846
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 12 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOGINDRA SINGH, 20-72846 Agency No. Petitioner, A209-945-995 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Submitted December 4, 2024** San Francisco, California

Before COLLINS, VANDYKE, and MENDOZA, Circuit Judges.

Petitioner Jogindra Singh (“Singh”) seeks review of a Board of Immigration

Appeals (“BIA”) decision affirming the denial of his untimely motion to reopen

removal proceedings. We have jurisdiction under 8 U.S.C. § 1252(a), and we deny

in part and dismiss in part the petition.

* 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). The court reviews the denial of a motion to reopen for an abuse of discretion.

Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007). Under this standard,

the court must affirm the agency’s denial of reopening unless the decision is

“arbitrary, irrational or contrary to law.” Ontiveros-Lopez v. I.N.S., 213 F.3d 1121,

1124 (9th Cir. 2000) (citation omitted). “Where, as here, the BIA issues a Burbano

affirmance,” the court reviews the decision of the Immigration Judge (“IJ”) “as if it

were the decision of the BIA.” Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir.

2009) (citing Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en banc) and

referring to Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994)). The court also

reviews “any additional reasoning offered by the BIA.” Husyev v. Mukasey, 528

F.3d 1172, 1177 (9th Cir. 2008). We review questions of law de novo.

Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022).

1. The BIA did not err by declining to reopen based on lack of notice. A

motion to reopen due to lack of notice may be filed at any time. 8 C.F.R.

§ 1003.23(b)(4)(iii)(A)(2); see Urbina-Osejo v. I.N.S., 124 F.3d 1314, 1316–17 (9th

Cir. 1997). Singh argues that he was entitled to reopening because he did not receive

notice of his removal hearing. But Singh failed to properly update his address after

moving to different cities, which caused subsequent notices to be sent to his last

known address rather than his current address. Singh was previously advised of the

requirement that he keep the Immigration Court apprised of any address changes by

2 providing written notice. See 8 U.S.C. § 1229(a)(1)(F)(ii). Yet Singh failed to do

so. Because of this failure, actual written notice at his new address was not required.

See Velasquez-Escovar v. Holder, 768 F.3d 1000, 1003–04 (9th Cir. 2014). The

Immigration Court was only required to mail the notice of hearing to the last address

Singh provided, see 8 U.S.C. § 1229a(b)(5)(A) (“The written notice by the Attorney

General shall be considered sufficient for purposes of this subparagraph if provided

at the most recent address provided under section 1229(a)(1)(F) of this title.”), and

the agency permissibly concluded, on this record, that the Immigration Court had

done so. See Matter of M-R-A-, 24 I. & N. Dec. 665, 671–75 (BIA 2008).

The BIA also did not err in holding that Singh improperly raised for the first

time on appeal the argument that he did not know how to change his address with

the Immigration Court. See 8 U.S.C. § 1252(d)(1) (requiring exhaustion before a

court may review a final order of removal). Although Singh contends that he did

change his address at local Immigration and Customs Enforcement (“ICE”) offices,

notifying ICE of his new address is not the same as submitting the required written

notice to the Immigration Court. 8 U.S.C. § 1229(a)(1)(F). For all these reasons,

the agency did not err by declining to reopen the proceedings, and we deny the

petition in this regard.

2. The agency also did not err by finding that no exceptional circumstances

warranted reopening. Aside from Singh’s motion being time-barred, as it was filed

3 more than nine months after the IJ’s removal order, Singh does not establish

exceptional circumstances that support reopening. To start, Singh was not

misinformed about the date of his hearing when an ICE official provided a

then-correct date for the hearing. Cf. Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1184

(9th Cir. 2001) (en banc), overruled on other grounds by Smith v. Davis, 953 F.3d

582 (9th Cir. 2020) (en banc). Nor does his argument that he lacked actual notice

qualify as an exceptional circumstance. Indeed, any lack of notice is a result of

Singh failing to satisfy his statutory obligation to update his address, which is not an

exceptional circumstance. See 8 U.S.C. § 1229a(b)(5)(B), (e)(1). Thus, we likewise

deny the petition in this respect.

3. The BIA also did not err by declining to reopen the removal proceedings

sua sponte. The BIA maintains sua sponte authority to reopen proceedings when it

is persuaded that a “situation is truly exceptional.” Lona v. Barr, 958 F.3d 1225,

1230 (9th Cir. 2020) (internal quotation marks and citation omitted). But even in an

exceptional circumstance, the BIA is not required to take sua sponte action. Id. The

BIA’s decision on sua sponte reopening is thus unreviewable unless it was based on

a “legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).

No such legal or constitutional error is evident in the record before us. We therefore

lack jurisdiction to review the BIA’s determination to not reopen sua sponte, and we

dismiss the petition in this regard.

4 PETITION DENIED IN PART AND DISMISSED IN PART.