Jose Hernandez-Farias v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 9, 2024
• Docket: 20-70488
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 9 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE JUAN HERNANDEZ-FARIAS, No. 20-70488

Petitioner, Agency No. A206-100-771

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

Respondent.

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

Submitted November 6, 2024** San Francisco, California

Before: GOULD, SUNG, and DE ALBA, Circuit Judges.

Jose Juan Hernandez Farias is a native and citizen of Mexico. Hernandez

Farias petitions for review of the Board of Appeals’ (“BIA”) dismissal of his

appeal of an immigration judge’s (“IJ”) denial of his motion to reopen his in

absentia removal order. We have jurisdiction under 8 U.S.C. § 1252, and “[w]e

* 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 the denial of a motion to reopen for abuse of discretion.” Bent v. Garland,

115 F.4th 934, 939 (9th Cir. 2024). “Where, as here, the BIA adopts the decision

of the IJ and affirms without opinion, we review the decision of the IJ as the final

agency determination . . . .” Smolniakova v. Gonzales, 422 F.3d 1037, 1044 (9th

Cir. 2005). We deny the petition for review.

1. Hernandez Farias entered the United States without inspection on or

about October 2002. On March 14, 2014, the Department of Homeland Security

(“DHS”) filed a Notice to Appear (“NTA”) with the immigration court which

alleged that Hernandez Farias was removable as a non-citizen present in the United

States without having been admitted or paroled. On June 5, 2015, DHS moved to

administratively close Hernandez Farias’s removal proceedings, but specified that

either “party may file a motion to recalendar [the proceedings] with this

[immigration] Court.” The IJ granted the motion.

2. On October 25, 2018, DHS moved to recalendar Hernandez Farias’s

removal proceedings. The IJ granted the motion on November 5, 2018. The IJ set

a hearing for February 19, 2019. Hernandez Farias’s counsel of record received

notice of the hearing but was unable to locate Hernandez Farias before the hearing.

Counsel reported that she inquired about Hernandez Farias’s whereabouts,

“including visiting his last known address.” Counsel moved for an extension of

time, which the court granted, and the hearing was continued to April 16, 2019.

2 Counsel was still unable to contact Hernandez Farias by April 16, 2019, and

Hernandez Farias did not appear at the hearing. The IJ found Hernandez Farias

removable in absentia. On July 25, 2019, counsel for Hernandez Farias filed a

motion to reopen and rescind the in absentia order. The IJ denied the motion, and

the BIA affirmed on appeal.

3. An in absentia removal order may be rescinded and a matter reopened

at any time if the petitioner demonstrates that there was improper notice. 8 U.S.C.

§ 1229a(b)(5)(C)(ii). The in absentia removal order may also be rescinded within

180 days of issuance if the petitioner demonstrates that his failure to appear was

for “exceptional circumstances.” Id. § 1229a(b)(5)(C)(i). The IJ held that

Hernandez Farias did not demonstrate improper notice. As evidenced by her

presence at the February 2019 hearing, Hernandez Farias’s counsel received notice

of the hearing. See Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir. 2000). Further,

the IJ observed that counsel received notice of the April hearing when it was hand-

delivered to her at the court during the February proceedings. The IJ also denied

reopening on the basis of “exceptional circumstances,” holding that counsel’s

inability to locate Hernandez Farias was not exceptional.

4. Hernandez Farias contends that the IJ erred by failing to apply the

appropriate test in deciding that “exceptional circumstances” did not apply.

Hernandez Farias argues that the IJ did not consider factors such as his likelihood

3 of success on the merits of a potential cancellation of removal claim, his motive, or

the effects of deportation on his family. However, Hernandez Farias did not raise

these factors before the IJ, so the IJ’s failure to consider them was not an abuse of

discretion. See 8 U.S.C. § 1229a (stating that the movant must “demonstrate[] that

failure to appear was because of exceptional circumstances”). Moreover, in

Vukmirovic v. Holder we concluded that a petitioner’s failure to appear is not

excused where that failure is caused by petitioner’s lack of diligence in keeping

counsel updated on his changes of address, and petitioner otherwise fails to

establish exceptional circumstances. See 640 F.3d 977, 979 (9th Cir. 2011).

Hernandez Farias’s argument is unpersuasive, and we deny the petition for review.

5. Although Hernandez Farias also contends that changes in federal

immigration policy constituted “exceptional circumstances,” he did not raise this

argument before the BIA or the IJ. Per 8 U.S.C. § 1252(d)(1), a petitioner must

“exhaust” an issue in administrative proceedings before seeking judicial review.

This exhaustion requirement is a “claim-processing rule” and is not, as the

government contends, jurisdictional. Santos-Zacaria v. Garland, 598 U.S. 411, 419

(2023). However, we generally enforce claims-processing rules where, as here, the

rule is properly raised. Suate-Orellana v. Garland, 101 F.4th 624, 629 (9th Cir.

2024). We therefore do not reach Hernandez Farias’s change-in-policy argument.

PETITION FOR REVIEW DENIED.