Pleitez v. Gonzales

Ninth Circuit

Pleitez v. Gonzales

168 F. App'x 769

Court of Appeals for the Ninth Circuit·Decided February 22, 2006·No. No. 04-76287·Published

Opinion

MEMORANDUM

**

Dorelia Carmilina Nova Pleitez, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming an immigration judge’s order denying her motion to reopen her deportation proceedings conducted in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion, Singh v. INS, 213 F.3d [770]*7701050, 1052 (9th Cir.2000), and we deny in part and grant in part the petition for review, and remand for further proceedings.

The BIA correctly concluded that petitioner received sufficient notice of her hearing because it is undisputed that she was personally served with an Order to Show Cause (“OSC”) that contained notice of her hearing and was written in both English and Spanish. Contrary to petitioner’s contention, there was no statutory requirement that the OSC be orally translated. See 8 U.S.C. 1252b(a)(3) (repealed 1996). Accordingly, the BIA did not abuse its discretion in refusing to rescind petitioner’s deportation order.

Relying on the BIA’s decision In re M-S- 22 I. & N. Dec. 349 (BIA 1998) (en banc), petitioner contends that even if her deportation order is not rescinded, her motion to reopen should nevertheless be granted to address her eligibility for adjustment of status. Id. at 353-55. (distinguishing motions to reopen for purposes of rescinding an in absentia deportation order from motions to reopen to apply for adjustment of status). As the BIA’s decision does not address petitioner’s motion to reopen insofar as she seeks to apply for adjustment of status, we remand for further proceedings. See Yepes-Prado v. INS, 10 F.3d 1363, 1370 (9th Cir.1993) (“BIA acts arbitrarily when it disregards its own precedents and policies without giving a reasonable explanation for doing so”).

PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

Free access — add to your briefcase to read the full text and ask questions with AI

MEMORANDUM

**

Dorelia Carmilina Nova Pleitez, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming an immigration judge’s order denying her motion to reopen her deportation proceedings conducted in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion, Singh v. INS, 213 F.3d [770]*7701050, 1052 (9th Cir.2000), and we deny in part and grant in part the petition for review, and remand for further proceedings.

The BIA correctly concluded that petitioner received sufficient notice of her hearing because it is undisputed that she was personally served with an Order to Show Cause (“OSC”) that contained notice of her hearing and was written in both English and Spanish. Contrary to petitioner’s contention, there was no statutory requirement that the OSC be orally translated. See 8 U.S.C. 1252b(a)(3) (repealed 1996). Accordingly, the BIA did not abuse its discretion in refusing to rescind petitioner’s deportation order.

Relying on the BIA’s decision In re M-S- 22 I. & N. Dec. 349 (BIA 1998) (en banc), petitioner contends that even if her deportation order is not rescinded, her motion to reopen should nevertheless be granted to address her eligibility for adjustment of status. Id. at 353-55. (distinguishing motions to reopen for purposes of rescinding an in absentia deportation order from motions to reopen to apply for adjustment of status). As the BIA’s decision does not address petitioner’s motion to reopen insofar as she seeks to apply for adjustment of status, we remand for further proceedings. See Yepes-Prado v. INS, 10 F.3d 1363, 1370 (9th Cir.1993) (“BIA acts arbitrarily when it disregards its own precedents and policies without giving a reasonable explanation for doing so”).

PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

Pleitez v. Gonzales, 168 F. App'x 769 (9th Cir. 2006).

Pincite

168 F. App'x 769 (Pleitez v. Gonzales) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related