Marcos Bacab Ek v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 30, 2018
• Docket: 17-70413
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 30 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARCOS BACAB EK, No. 17-70413

Petitioner, Agency No. A206-149-269

v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Submitted November 27, 2018**

Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.

Marcos Bacab Ek, a native and citizen of Mexico, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s order denying his motion 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 we review de novo

* 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). 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 abuse its discretion in denying Bacab Ek’s motion to

reopen for failure to establish exceptional circumstances, where he did not

establish that he failed to appear at his hearing due to circumstances beyond his

control. See 8 C.F.R. § 1003.23(b)(4)(ii); 8 U.S.C. § 1229a(e)(1) (defining

exceptional circumstances as circumstances beyond the control of the alien);

Valencia-Fragoso v. INS, 321 F.3d 1204, 1205-06 (9th Cir. 2003) (no exceptional

circumstances where petitioner was late to her hearing due to confusion about the

time). The record does not support Bacab Ek’s contention that the BIA

insufficiently explained its decision. See Najmabadi v. Holder, 597 F.3d 983, 990-

91 (9th Cir. 2010) (holding the BIA adequately considered evidence and

sufficiently announced its decision).

Our jurisdiction to review BIA decisions denying sua sponte reopening is

limited to reviewing the reasoning behind the decisions for legal or constitutional

error. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). To the extent Bacab

Ek contends the BIA’s sua sponte determination was premised on a legal error, this

contention is not supported by the record. Id.

PETITION FOR REVIEW DENIED.

2 17-70413