NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT AUG 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS KUMAR CHETTRI, No. 20-73018
Petitioner, Agency No. A072-131-283
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted August 17, 2023** Pasadena, California
Before: WARDLAW, CHRISTEN, and SUNG, Circuit Judges.
Kumar Chettri petitions for review of the Board of Immigration Appeals’
(BIA) order denying his 2020 motion to reopen. Chettri was ordered removed in
absentia in 1996 and has since filed four unsuccessful motions to reopen in 2000,
* 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). 2011, 2018, and 2020. We denied Chettri’s petitions for review of the BIA’s
denial of his 2000 and 2011 motions, see Chettri v. INS, 33 F. App’x 350 (9th Cir.
2002); Chettri v. Lynch, 650 F. App’x 323 (9th Cir. 2016), and Chettri did not seek
review of the BIA’s decision denying his 2018 motion. In his denied 2020 motion,
Chettri requested that the BIA rescind his in absentia order of deportation as
improperly issued, reopen his proceedings so that he would be able to apply for
relief based on changed country conditions, sua sponte reopen his proceedings, or
reissue its denial of his 2018 motion so that he would be able to seek review of that
decision. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the
petition for review.
We review the BIA’s denial of a motion to reopen for abuse of discretion
and will not overturn the decision unless the Board acted “arbitrarily, irrationally,
or contrary to law.” Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). BIA
decisions denying sua sponte reopening are reviewed only to determine if the
Board relied on an incorrect legal premise. Bonilla v. Lynch, 840 F.3d 575, 588
(9th Cir. 2016).
1. The BIA did not abuse its discretion when it declined to rescind Chettri’s
in absentia removal order. Chettri argues that the removal order was improperly
issued because he did not receive a translation of the Order to Show Cause (OSC)
2 in a language he could understand, nor an oral warning about the consequences of
failing to appear. As the BIA observed, motions to rescind in absentia removal
orders based on lack of notice must be filed with the Immigration Judge (IJ), not
the BIA. See 8 C.F.R. §§ 1003.2, 1003.23(b)(4)(iii). But to the extent Chettri’s
motion can be construed as a motion for the BIA to remand to the IJ to determine
whether to rescind the in absentia removal order, the BIA did not abuse its
discretion in determining the removal order was properly issued.
Chettri relies on a misreading of Matter of M-S-, 22 I. & N. Dec. 349 (B.I.A.
1998), to assert that his removal order must be rescinded because he never received
an oral warning of the consequences of failing to appear at his removal hearing.
Matter of M-S- concerned former INA § 242B(e)(1), which provided that
noncitizens removed in absentia were ineligible for certain forms of relief for five
years after removal if they were “provided oral notice, either in the alien’s native
language or in another language the alien understands, of the time and place of the
proceedings and of the consequences . . . of failing . . . to attend a proceeding.”
Matter of M-S- considered how this provision applied to a noncitizen removed in
absentia who sought to reopen proceedings to seek adjustment of status. See 22 I.
& N. Dec. at 356–57. Matter of M-S- discussed oral warnings as relevant only to
whether a noncitizen removed in absentia was subsequently barred from seeking
3 certain forms of relief. Here, the Board did not hold that Chettri was ineligible to
apply for immigration relief; instead, it held that his motion to reopen in order to
do so was untimely and number-barred.
Regarding Chettri’s observation that he did not receive a written translation
of the OSC in a language that he could understand, the record shows that he was
personally served with the OSC, understood from conversations with others that he
was supposed to appear in immigration court, and chose not to appear because he
was scared of being detained or deported. Though Chettri may not have
understood that failing to appear could result in in absentia removal, the regulation
only requires that the noncitizen “receive[d] notice” of the hearing, not that they
were made aware of the consequences of failing to appear. See 8 C.F.R.
§ 1003.23(b)(4)(iii)(A)(2); see also Khan v. Ashcroft, 374 F.3d 825, 828 (9th Cir.
2004) (noting that neither statutory notice requirements nor implementing
regulations “require that INS provide those notices in any language other than
English”).
2. The BIA did not abuse its discretion when it denied Chettri’s motion to
reopen based on changed country conditions. Chettri’s 2020 motion repeated
claims from his 2011 and 2018 motions that, contrary to the information in his
1993 asylum application and 2000 motion to reopen, he is a native and citizen of
4 Nepal whose family members were murdered in a politically motivated attack by a
Maoist group. Chettri’s 2020 motion incorporated by reference the supporting
evidence submitted with his unsuccessful 2018 motion. The BIA therefore
concluded that the 2020 motion “d[id] not include any new, authenticated evidence
to establish [Chettri’s] identity or his claimed status as a citizen and national of
Nepal.”
Chettri argues that the BIA improperly disregarded his evidence by relying
on its previous denial of the 2018 motion, which, in Chettri’s view, applied an
incorrect authentication standard and made an unauthorized credibility
determination. Chettri could have raised these arguments if he had petitioned for
review of the BIA’s denial of his 2018 motion, but he failed to do so. And though
his 2020 motion requested that the BIA reissue its denial of the 2018 motion, the
BIA declined to do so. Chettri does not challenge that part of the BIA’s decision in
his petition for review. We therefore conclude that the BIA did not abuse its
discretion by determining that it had already considered and rejected Chettri’s
arguments regarding changed country conditions.
3. The BIA’s denial of sua sponte reopening was not premised on legal
error. Chettri argued in his 2020 motion that a combination of factors—“the
failure to receive oral warnings at the time of issuance of the OSC,” mistreatment
5 upon his arrival in the United States, “abuse by his former spouse,” “the murder of
his family in Nepal,” and ineffective assistance of his former counsel—created an
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT AUG 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS KUMAR CHETTRI, No. 20-73018
Petitioner, Agency No. A072-131-283
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted August 17, 2023** Pasadena, California
Before: WARDLAW, CHRISTEN, and SUNG, Circuit Judges.
Kumar Chettri petitions for review of the Board of Immigration Appeals’
(BIA) order denying his 2020 motion to reopen. Chettri was ordered removed in
absentia in 1996 and has since filed four unsuccessful motions to reopen in 2000,
* 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). 2011, 2018, and 2020. We denied Chettri’s petitions for review of the BIA’s
denial of his 2000 and 2011 motions, see Chettri v. INS, 33 F. App’x 350 (9th Cir.
2002); Chettri v. Lynch, 650 F. App’x 323 (9th Cir. 2016), and Chettri did not seek
review of the BIA’s decision denying his 2018 motion. In his denied 2020 motion,
Chettri requested that the BIA rescind his in absentia order of deportation as
improperly issued, reopen his proceedings so that he would be able to apply for
relief based on changed country conditions, sua sponte reopen his proceedings, or
reissue its denial of his 2018 motion so that he would be able to seek review of that
decision. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the
petition for review.
We review the BIA’s denial of a motion to reopen for abuse of discretion
and will not overturn the decision unless the Board acted “arbitrarily, irrationally,
or contrary to law.” Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). BIA
decisions denying sua sponte reopening are reviewed only to determine if the
Board relied on an incorrect legal premise. Bonilla v. Lynch, 840 F.3d 575, 588
(9th Cir. 2016).
1. The BIA did not abuse its discretion when it declined to rescind Chettri’s
in absentia removal order. Chettri argues that the removal order was improperly
issued because he did not receive a translation of the Order to Show Cause (OSC)
2 in a language he could understand, nor an oral warning about the consequences of
failing to appear. As the BIA observed, motions to rescind in absentia removal
orders based on lack of notice must be filed with the Immigration Judge (IJ), not
the BIA. See 8 C.F.R. §§ 1003.2, 1003.23(b)(4)(iii). But to the extent Chettri’s
motion can be construed as a motion for the BIA to remand to the IJ to determine
whether to rescind the in absentia removal order, the BIA did not abuse its
discretion in determining the removal order was properly issued.
Chettri relies on a misreading of Matter of M-S-, 22 I. & N. Dec. 349 (B.I.A.
1998), to assert that his removal order must be rescinded because he never received
an oral warning of the consequences of failing to appear at his removal hearing.
Matter of M-S- concerned former INA § 242B(e)(1), which provided that
noncitizens removed in absentia were ineligible for certain forms of relief for five
years after removal if they were “provided oral notice, either in the alien’s native
language or in another language the alien understands, of the time and place of the
proceedings and of the consequences . . . of failing . . . to attend a proceeding.”
Matter of M-S- considered how this provision applied to a noncitizen removed in
absentia who sought to reopen proceedings to seek adjustment of status. See 22 I.
& N. Dec. at 356–57. Matter of M-S- discussed oral warnings as relevant only to
whether a noncitizen removed in absentia was subsequently barred from seeking
3 certain forms of relief. Here, the Board did not hold that Chettri was ineligible to
apply for immigration relief; instead, it held that his motion to reopen in order to
do so was untimely and number-barred.
Regarding Chettri’s observation that he did not receive a written translation
of the OSC in a language that he could understand, the record shows that he was
personally served with the OSC, understood from conversations with others that he
was supposed to appear in immigration court, and chose not to appear because he
was scared of being detained or deported. Though Chettri may not have
understood that failing to appear could result in in absentia removal, the regulation
only requires that the noncitizen “receive[d] notice” of the hearing, not that they
were made aware of the consequences of failing to appear. See 8 C.F.R.
§ 1003.23(b)(4)(iii)(A)(2); see also Khan v. Ashcroft, 374 F.3d 825, 828 (9th Cir.
2004) (noting that neither statutory notice requirements nor implementing
regulations “require that INS provide those notices in any language other than
English”).
2. The BIA did not abuse its discretion when it denied Chettri’s motion to
reopen based on changed country conditions. Chettri’s 2020 motion repeated
claims from his 2011 and 2018 motions that, contrary to the information in his
1993 asylum application and 2000 motion to reopen, he is a native and citizen of
4 Nepal whose family members were murdered in a politically motivated attack by a
Maoist group. Chettri’s 2020 motion incorporated by reference the supporting
evidence submitted with his unsuccessful 2018 motion. The BIA therefore
concluded that the 2020 motion “d[id] not include any new, authenticated evidence
to establish [Chettri’s] identity or his claimed status as a citizen and national of
Nepal.”
Chettri argues that the BIA improperly disregarded his evidence by relying
on its previous denial of the 2018 motion, which, in Chettri’s view, applied an
incorrect authentication standard and made an unauthorized credibility
determination. Chettri could have raised these arguments if he had petitioned for
review of the BIA’s denial of his 2018 motion, but he failed to do so. And though
his 2020 motion requested that the BIA reissue its denial of the 2018 motion, the
BIA declined to do so. Chettri does not challenge that part of the BIA’s decision in
his petition for review. We therefore conclude that the BIA did not abuse its
discretion by determining that it had already considered and rejected Chettri’s
arguments regarding changed country conditions.
3. The BIA’s denial of sua sponte reopening was not premised on legal
error. Chettri argued in his 2020 motion that a combination of factors—“the
failure to receive oral warnings at the time of issuance of the OSC,” mistreatment
5 upon his arrival in the United States, “abuse by his former spouse,” “the murder of
his family in Nepal,” and ineffective assistance of his former counsel—created an
“exceptional situation” warranting sua sponte reopening. In addition to his
arguments regarding legal error in the BIA’s denial of his 2018 motion, Chettri
asserts that the BIA committed legal error when analyzing his claims regarding
oral warnings and ineffective assistance of counsel (IAC). As discussed above, we
see no error in the BIA’s conclusion that an oral warning was not required for
Chettri’s in absentia removal.
Chettri’s IAC claim concerns the performance of his former counsel, who
prepared Chettri’s unsuccessful 2000 motion to reopen to apply for protection
under the Convention Against Torture (CAT), a form of relief that did not become
available until after Chettri was ordered removed. The 2000 motion perpetuated
Chettri’s admittedly false claims from his 1993 asylum application that he was a
citizen of India who had suffered torture and death threats based on his Hindu
descent. The IJ denied the motion to reopen as untimely, explaining that a
noncitizen whose removal order became final prior to March 22, 1999 was eligible
to have his proceedings reopened to apply for CAT protection only if he filed a
motion prior to June 21, 1999. Because Chettri did not file his motion until March
29, 2000, it was untimely.
6 Chettri argues that his former counsel was ineffective because she “filed a
motion under the CAT for the Petitioner . . . without even verifying any of the
information with the Petitioner or obtaining a supporting declaration,” therefore
perpetuating his false claims to Indian citizenship. Under Matter of Lozada, an
immigration petitioner making an IAC claim generally must: (1) submit an
affidavit detailing the agreement with their former counsel; (2) notify their former
counsel and afford them an opportunity to respond; and (3) state whether they filed
a disciplinary complaint. See 19 I. & N. Dec. 637, 639 (B.I.A. 1988), overruled in
part on other grounds by Matter of Compean, 24 I. & N. Dec. 710 (2009). If a
petitioner does not comply with Matter of Lozada, their IAC claim can succeed
only if their counsel’s performance was facially deficient and prejudiced the
petitioner. See Guan v. Barr, 925 F.3d 1022, 1033 (9th Cir. 2019).
Chettri did not comply with Matter of Lozada, and he has not established
that his former counsel’s performance was facially deficient or prejudicial. It was
not facially unreasonable for Chettri’s counsel to rely on the information in his
asylum application. Additionally, including a declaration from Chettri would not
have affected the outcome of the 2000 motion because the IJ denied the motion as
untimely and did not reach the merits. Chettri could not have claimed the changed
country conditions exception to untimeliness in 2000 because he did not learn
7 about the murder of his family members until 2008. Further, as the BIA noted,
Chettri did not exercise due diligence in raising his IAC claim because he would
have learned about the underlying facts by 2011 at the latest, and he did not raise
the IAC claim until 2020. See Perez-Camacho v. Garland, 54 F.4th 597, 606 (9th
Cir. 2022) (“The party invoking equitable tolling must have been prevented from
obtaining vital information bearing on the existence of the claim despite the
exercise of all due diligence.” (citation and internal quotation marks omitted)). We
conclude that the BIA’s analysis of Chettri’s IAC claim was not legally erroneous.
The motions for a stay of removal (Dkt. No. 1) and supplemental motion for
stay of deportation (Dkt. No. 5) are denied.
PETITION FOR REVIEW DENIED.