Jose Flores-Najera v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 11, 2020
• Docket: 19-71487
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE LUIS FLORES-NAJERA, No. 19-71487

Petitioner, Agency No. A200-626-511

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted September 8, 2020**

Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.

Jose Luis Flores-Najera, 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 (“IJ”) decision denying his motion to reopen removal

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

We review for abuse of discretion the denial of a motion to reopen and review de

* 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). novo claims of due process violations. Mohammed v. Gonzales, 400 F.3d 785,

791-92 (9th Cir. 2005). We deny the petition for review.

The agency did not abuse its discretion in denying the motion to reopen,

where Flores-Najera did not establish lack of notice because the notice of hearing

was properly delivered to the address he provided to the immigration court. See

8 U.S.C. §§ 1229a(b)(5)(C), 1229(c); see also Matter of G-Y-R-, 23 I. & N. Dec.

181, 189 (BIA 2001) (where notice “reaches the correct address but does not reach

the alien through some failure in the internal workings of the household, the alien

can be charged with receiving proper notice, and proper service will have been

effected”).

The IJ applied the correct standard to determine that the notice of hearing

being misplaced within the household is not an exceptional circumstance that

would excuse Flores-Najera’s failure to appear. See 8 U.S.C. § 1229a(b)(5)(C),

(e)(1) (exceptional circumstances are those beyond the control of the alien);

Farhoud v. INS, 122 F.3d 794, 796 (9th Cir. 1997) (no exceptional circumstance

where the notice of hearing was mailed to the last known address and where

receipt was acknowledged “by someone at that address”).

To the extent Flores-Najera contends that the IJ lacked jurisdiction over

proceedings because of an incomplete notice to appear, that argument is foreclosed

by Karingithi v. Whitaker, 913 F.3d 1158, 1160-62 (9th Cir. 2019) (notice to

2 19-71487 appear need not include time and date of hearing to vest jurisdiction in the

immigration court). To the extent Flores-Najera is arguing that the incomplete

notice to appear deprived him of adequate notice of the hearing at which he was

later ordered removed, that argument is unsupported by the record because the

subsequent notices included the date and time of the hearings.

The agency did not err or demonstrate bias by denying the motion despite

the absence of an opposition. See Limsico v. INS, 951 F.2d 210, 213 (9th Cir.

1991) (BIA has authority to deny unopposed motions to reopen); see also Padilla-

Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014) (“To prevail on a due-

process claim, a petitioner must demonstrate both a violation of rights and

prejudice.”).

PETITION FOR REVIEW DENIED.

3 19-71487