Mandy Liemmertz v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 19, 2018
• Docket: 16-73253
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MANDY VIENNA STERMINT No. 16-73253 LIEMMERTZ, Agency No. A095-883-625 Petitioner,

v. MEMORANDUM*

MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Submitted December 17, 2018**

Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.

Mandy Vienna Stermint Liemmertz, a native and citizen of Indonesia,

petitions for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing her appeal from an immigration judge’s (“IJ”) order denying her motion

* 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). Petitioner’s request for oral arguments, raised in her opening brief, is denied. 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 novo questions of law. Mohammed v. Gonzales, 400 F.3d

785, 791-92 (9th Cir. 2005). We deny the petition for review.

The agency did not err or abuse its discretion in denying Liemmertz’s

motion to reopen based on lack of notice. See 8 C.F.R. § 1003.23(b)(4)(ii) (motion

to reopen in absentia proceedings may be filed at any time if alien did not receive

proper notice). The IJ personally served the notice of hearing on Liemmertz’s

attorney of record, and the notice contained sufficient advisals regarding the

consequences of failing to appear. See 8 U.S.C. § 1229(a)(2)(A) (setting forth

notice requirements); 8 C.F.R. § 1003.26(c)(2) (notice is sufficient for in absentia

purposes when “written notice of the time and place of proceedings and written

notice of the consequences of failure to appear were provided to the alien or the

alien’s counsel of record”); Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir. 2000) (no

due process violation where written notice was personally served on petitioners’

counsel, in petitioners’ presence, in court at the master calendar hearing). We reject

Liemmertz’s unsupported contention that her notice of hearing was insufficient

under 8 U.S.C. § 1229(a)(2)(A)(ii) because it did not inform her of the scope of

judicial review of an in absentia order.

We do not reach Liemmertz’s contention regarding the IJ’s determination

2 that she filed a frivolous asylum application because it is outside the scope of our

review. See 8 U.S.C. § 1229a(b)(5)(D) (judicial review of an in absentia removal

order is limited to “(i) the validity of the notice provided to the alien, (ii) the

reasons for the alien’s not attending the proceeding, and (iii) whether or not the

alien is removable.”).

PETITION FOR REVIEW DENIED.