Oscar Servellon-Torres v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 9, 2024
• Docket: 20-72332
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 9 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OSCAR ALBERTO SERVELLON- No. 20-72332 TORRES, Agency No. A208-449-017 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 5, 2024** Pasadena, California

Before: BEA, OWENS, and KOH, Circuit Judges.

Oscar Servellon-Torres, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his

appeal of an immigration judge’s decision denying his motion to reopen and

* 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). rescind a removal order issued in absentia. We review the BIA’s denial of a

motion to reopen for abuse of discretion. Singh v. Garland, 117 F.4th 1145, 1150

(9th Cir. 2024). As the parties are familiar with the facts, we do not recount them

here. We deny the petition for review.

An in absentia removal order can be rescinded if a petitioner files a timely

motion to reopen and demonstrates that his “failure to appear was because of

exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i).

“Because exceptional circumstances are by definition unique, we look to the

particularized facts and the totality of the circumstances of each case.” Singh, 117

F.4th at 1150 (citation and internal quotation marks omitted). “The key inquiry is

whether the petitioner did all he could and was without fault for not appearing at a

hearing.” Id. “Assessing the totality of the circumstances requires examining the

petitioner’s motive, diligence in his attempts to attend the hearing, and any external

impediments over which he had no control.” Id. “The totality of the

circumstances also includes the merits of [petitioner]’s pending claim for relief

when the denial [of a motion to reopen] leads to the unconscionable result of

deporting an individual eligible for relief.” Id. (citation and internal quotation

marks omitted).

In his motion to reopen, Servellon-Torres argued that he failed to appear at

his hearing because he did not inform his attorney of his updated address and

2 therefore his attorney was unable to let him know that his hearing date had been

postponed by four months. The BIA did not abuse its discretion in determining

that Servellon-Torres’s failure to inform his attorney of his address change did not

constitute “exceptional circumstances.” See id. Moreover, Servellon-Torres fails

to make a strong showing that denial of his motion to reopen would cause an

unconscionable result. See Hernandez-Galand v. Garland, 996 F.3d 1030, 1037

(9th Cir. 2021) (noting that “[a] strong showing on some factors may lessen the

requisite showing on others” for a motion to reopen); see also Najmabadi v.

Holder, 597 F.3d 983, 991 (9th Cir. 2010) (declining to remand where the court

had “no doubt that the BIA would reach the same decision if we asked it to focus

more closely on” the purportedly overlooked evidence).

Before this court, Servellon-Torres argues for the first time that his status as

an unaccompanied minor when he entered the United States and lack of access to

his mail at his sponsor’s residence constitute “exceptional circumstances” excusing

his failure to appear at the hearing. However, we decline to consider this argument

because Servellon-Torres failed to exhaust it before the BIA. See Umana-Escobar

v. Garland, 69 F.4th 544, 550 (9th Cir. 2023) (noting that administrative

exhaustion under 8 U.S.C. § 1252(d)(1), while not jurisdictional, is a claim-

processing rule that the court “must enforce” when it is “properly raise[d]”

(citation omitted)).

3 The temporary stay of removal remains in place until the mandate issues.

The motion for a stay of removal is otherwise denied.

PETITION FOR REVIEW DENIED.