Marcos Garcia-Carrillo v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 10, 2020
• Docket: 18-72343
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 10 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCOS ALEJANDRO GARCIA- No. 18-72343 CARRILLO, Agency No. A209-795-992 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted December 8, 2020** Pasadena, California

Before: GRABER and COLLINS, Circuit Judges, and BOULWARE,*** District Judge.

Petitioner Marcos Alejandro Garcia-Carrillo seeks review of the Board of

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

* 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 F. Boulware II, United States District Judge for the District of Nevada, sitting by designation. ("IJ") denial of reconsideration of Petitioner’s motion to reopen his removal

proceedings. Reviewing for abuse of discretion, Cano-Merida v. INS, 311 F.3d

960, 964 (9th Cir. 2002), we deny the petition.

Accepting Petitioner’s explanation for his late arrival to his immigration

hearing—a lost driver for Uber—as true, see Arredondo v. Lynch, 824 F.3d 801,

806 (9th Cir. 2016) (holding that, on a motion to reopen, the agency generally

"must accept as true the facts stated in the petitioner’s affidavits unless they are

inherently unbelievable" (quoting Limsico v. INS, 951 F.2d 210, 213 (9th Cir.

1991)) (brackets omitted)), the BIA did not abuse its discretion in concluding that

Petitioner did not present exceptional circumstances that excused his failure to

appear. See 8 U.S.C. § 1229a(b)(5)(C)(i) (providing that an IJ may rescind her

order for removal in absentia "if the alien demonstrates that the failure to appear

was because of exceptional circumstances").

We cannot materially distinguish Petitioner’s misfortune from that of the

petitioner in Arredondo, who, we held, did not provide "exceptional

circumstances" when she arrived late to court because of her car’s mechanical

failure. 824 F.3d at 806. As in Arredondo, Petitioner "left little margin for error"

for a relatively common travel snafu, whether that be a lost driver, an overheated

car, or Los Angeles’ notorious traffic. Id. Nor does Petitioner contend that he is

2 "facially eligible for [a] status adjustment," such that denial of his motion to reopen

constitutes the "unconscionable result of deporting an individual eligible for relief

from deportation." Singh v. INS, 295 F.3d 1037, 1038, 1040 (9th Cir. 2002).

PETITION DENIED.