Julio Ortiz Mendoza v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 8, 2022
• Docket: 20-70710
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 8 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JULIO ORTIZ MENDOZA, No. 20-70710

Petitioner, Agency No. A028-534-455

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

Respondent.

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

Submitted July 6, 2022** Seattle, Washington

Before: HAWKINS and BUMATAY, Circuit Judges, and SEEBORG,*** District Judge.

Julio Ortiz Mendoza petitions for review from a Board of Immigration

Appeals’ (“BIA”) decision denying his motion to reopen. We review the denial of

* 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 Honorable Richard Seeborg, Chief United States District Judge for the Northern District of California, sitting by designation. a motion to reopen for an abuse of discretion. Najmabadi v. Holder, 597 F.3d 983,

986 (9th Cir. 2010). We have jurisdiction under 8 U.S.C. § 1252 and deny the

petition.

1. The BIA did not abuse its discretion in denying Ortiz Mendoza’s motion

to reopen for failure to establish exceptional circumstances. Ortiz Mendoza failed

to appear for an April 2000 hearing, and an immigration judge ordered him removed

in absentia. It was not until February 2018 when Ortiz Mendoza moved to reopen

and rescind the in absentia removal order. Generally, a motion to reopen must be

filed “within 180 days after the date of the order of removal if the alien demonstrates

that the failure to appear was because of exceptional circumstances.” 8 U.S.C. §

1229a(b)(5)(C)(i); see also Cui v. Garland, 13 F.4th 991, 996 (9th Cir. 2021).1

Ortiz Mendoza argues that the BIA abused its discretion by failing to find

exceptional circumstances based on the medical illnesses of his wife and children.2

1 Ortiz Mendoza’s removal proceedings commenced prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), so we analyze the “exceptional circumstances” question under the pre- IIRIRA rules rather than the current ones. See Chete Juarez v. Ashcroft, 376 F.3d 944, 947 (9th Cir. 2004). 2 We reject the government’s argument that Ortiz Mendoza waived his challenge to the “exceptional circumstances” issue by referring to the current standard set out in 8 U.S.C. § 1229a(e)(1), rather than the pre-IIRIRA standard. Waiver applies when a petitioner makes no “substantive argument” concerning an issue. See Cui, 13 F.4th at 999 n.6. Here, Ortiz Mendoza raised a substantive argument by attacking the BIA’s exceptional circumstances decision, albeit under the current version of the statute.

2 We disagree. The BIA specifically addressed Ortiz Mendoza’s medical evidence.

While the BIA acknowledged that Ortiz Mendoza’s wife and children suffered from

medical illnesses at the time of his removal hearing, it concluded that none of the

evidence demonstrated that Ortiz Mendoza’s absence from immigration court

proceedings was caused by the illnesses. Accepting Ortiz Mendoza’s assertions as

true, see Bhasin v. Gonzales, 423 F.3d 977, 986–87 (9th Cir. 2005), they do not

provide an adequate explanation for why he missed his removal hearing. For

example, Ortiz Mendoza states that his son suffered from a debilitating seizure

disorder pre-dating his removal proceeding. While his son’s illness may require

special assistance and support, Ortiz Mendoza does not show that he was unable to

attend the hearing because of his son’s condition. Ortiz Mendoza’s evidence

regarding other family members is similarly unavailing since he makes no

connection between their conditions and his absence at the immigration court

hearing.

Indeed, the evidence in the record undercuts any claim that his family’s

medical conditions caused his absence. The record shows that Ortiz Mendoza was

working at different farms in California and did not learn about the in absentia order

until he returned from California. Based on this record, it was not an abuse of

discretion to reject Ortiz Mendoza’s claim that his family’s medical conditions were

an “exceptional circumstance” that caused his absence.

3 2. Because the BIA did not abuse its discretion in denying the motion to

reopen on exceptional circumstances, we do not address Ortiz Mendoza’s other

contentions on appeal.

DENIED.