Leslie Ortiz v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 2, 2020
• Docket: 17-71318
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LESLIE K. ORTIZ, No. 17-71318

Petitioner, Agency No. A072-909-876

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

Respondent.

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

Submitted August 12, 2020** Pasadena, California

Before: CALLAHAN, BUMATAY, and VANDYKE, Circuit Judges.

Leslie Ortiz, a native of Guatemala, petitions for review of the Board of

Immigration Appeals’ (BIA) dismissal of her appeal of the immigration judge’s

(IJ) denial of her motion to reopen her removal proceedings. We have jurisdiction

under 8 U.S.C. § 1252, and we deny 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). Ortiz was sixteen years old when she failed to appear at her removal hearing.

According to her attorney and grandmother, Ortiz had run away with a man twenty

years her senior and had not been in contact with her family since her initial

hearing. After Ortiz was removed in abstentia, she filed a motion to reopen,

explaining that she missed her hearing because the bus she had taken from another

state arrived several hours late. The IJ denied the motion to reopen. Ortiz moved

for reconsideration, urging the agency to consider her age and state of mind in

determining whether exceptional circumstances excused her failure to appear. On

reconsideration, the IJ again denied reopening, noting that she had not proffered

any medical evidence regarding her purported mental or emotional issues. The

BIA affirmed the IJ’s denial of reopening and dismissed Ortiz’s appeal.

Ortiz raises two errors with the agency decision. First, Ortiz argues that, in

assessing whether an alien minor’s failure to appear is due to exceptional

circumstances, the agency must give “special consideration” to the “minor’s age,

psychological and emotional state of mind, maturity, and lack of sophistication and

knowledge.” However, Ortiz does not provide any supporting law for her

proposition, nor has our circuit provided for a different or special standard for

minors in this context. Rather, to rescind her in absentia removal order, Ortiz must

demonstrate that her failure to appear was due to “exceptional circumstances (such

as battery or extreme cruelty to the alien or any child or parent of the alien, serious

2 illness of the alien, or serious illness or death of the spouse, child, or parent of the

alien, but not including less compelling circumstances) beyond the control of the

alien.” See 8 U.S.C. §§ 1229a(b)(5)(C)(i), 1229a(e)(1). In determining

“exceptional circumstances,” the agency must consider the totality of the

circumstances. See Chete Juarez v. Ashcroft, 376 F.3d 944, 948 (9th Cir. 2004)

(requiring consideration of “all exceptional—i.e., compelling—circumstances

relevant to a petitioner’s motion to reopen”). Here, the agency considered the

relevant facts and evidence raised by Ortiz pertaining to her age, maturity, and

alleged mental and emotional issues. But it concluded that they did not

demonstrate exceptional circumstances, given the conflicting evidence in the

record and lack of corroboration. Accordingly, the agency did not err in its

assessment of whether exceptional circumstances caused Ortiz’s failure to appear.

Ortiz also argues that the agency erred by requiring that she submit medical

evidence to support her claim that exceptional circumstances caused her to miss

her hearing. In general, “[c]orroboration of a credible declaration by an alien

moving to reopen is not required.” Celis–Castellano v. Ashcroft, 298 F.3d 888, 892

(9th Cir. 2002). However, where an agency denies reopening because the

petitioner failed to carry his burden—due to lack of corroborative evidence for his

exceptional circumstances claim—but does not impose a new evidentiary

requirement, it does not abuse its discretion. See id.

3 The agency concluded that, without additional evidence supporting her

claimed undue influence or other mental or emotional issues, Ortiz had not met her

burden to show that exceptional circumstances beyond her control prevented her

appearance. Because the agency did not act “arbitrarily, irrationally, or contrary to

law” in reaching this conclusion, it did not abuse its discretion in denying Ortiz’s

motion to reopen. See Singh v. INS, 213 F.3d 1050, 1053 (9th Cir. 2000) (“Unless

the [Board] acted arbitrarily, irrationally, or contrary to law, we should not disturb

[its] ruling.” (citation and internal quotation marks omitted)).

The petition for review is DENIED.