Rivera Recinos v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 19, 2024
• Docket: 21-1391
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JAN 19 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SILVIA YANETH RIVERA RECINOS, No. 21-1391

Petitioner, Agency No. A073-967-403

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 12, 2023** Pasadena, California

Before: TASHIMA, GRABER, and CHRISTEN, Circuit Judges.

Petitioner Silvia Yaneth Rivera Recinos, a native and citizen of Guatemala,

petitions for review of a decision of the Board of Immigration Appeals (BIA or

Board). The Board denied Petitioner’s motion to reopen, which was based on

* 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 contention that she never received notice of the hearing at which the

Immigration Judge entered an in absentia deportation order. We have jurisdiction

pursuant to 8 U.S.C. § 1252, and we deny the petition.

1. The government points out that the BIA erroneously relied on

statutory provisions governing removal proceedings instead of those governing

deportation proceedings, which do not contain “time or numeric limits on motions

to reopen.” 8 C.F.R. § 1003.23(b)(4)(iii)(D) addresses exceptions to filing

deadlines regarding orders entered in absentia in deportation proceedings, and it

provides that the time and numerical limitations shall not apply to a motion to

reopen based on failure to receive notice.

The Board thus committed legal error and abused its discretion in

concluding that Petitioner’s motion was “both time- and number-barred.” See

Singh v. Holder, 771 F.3d 647, 653 (9th Cir. 2014) (holding that the BIA erred, and

thus abused its discretion, when it denied a motion to reopen for lack of authority).

Nonetheless, the Board’s error was harmless because substantial evidence

supports the Board’s finding that Petitioner failed to rebut the presumption of

effective notice. See Zamorano v. Garland, 2 F.4th 1213, 1228 (9th Cir. 2021)

(explaining that “[w]e apply ‘traditional administrative law principles’ in

reviewing immigration agency decisions, which include the rule that reviewing

2 courts shall take ‘due account’ of ‘the rule of prejudicial error’” (quoting, first,

Garland v. Dai, 141 S. Ct. 1669, 1679 (2021); and then quoting 5 U.S.C. § 706));

see also Reyes-Corado v. Garland, 76 F.4th 1256, 1260 (9th Cir. 2023) (reviewing

“the BIA’s determination of purely legal questions de novo and its factual findings

for substantial evidence”). The Board reasoned that it already had rejected

Petitioner’s argument— that she failed to receive notice of the hearing—twice.

The Board’s finding in its two earlier denials of Petitioner’s motion to

reopen—that Petitioner’s evidence did not establish that she failed to receive notice

because the envelope that she submitted with the incorrect address was postmarked

June 9, 1997, after the September 23, 1996 hearing—is supported by substantial

evidence.

Petitioner is correct that the record establishes that she did not receive actual

notice of the hearing. Even though the envelope containing the notice informing

her of the September 1996 hearing was sent to the correct address, the envelope

was stamped as unclaimed and returned to sender. This court has held ‘that notice

by certified mail sent to an alien’s last known address can be sufficient under the

[Immigration and Nationality] Act, even if no one signed for it.’”

Mejia-Hernandez v. Holder, 633 F.3d 818, 822 (9th Cir. 2011) (alteration in

original) (quoting Arrieta v. INS, 117 F.3d 429, 431 (9th Cir. 1997) (per curiam)).

3 Petitioner has failed to rebut the presumption of effective service because she did

not present evidence that “neither she nor a responsible party working or residing

at that address refused service,” or “that there was nondelivery or improper

delivery . . . by the Postal Service.” Arrieta, 117 F.3d at 432.

2. Petitioner contends that she established exceptional circumstances to

reopen her case. See 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1). We decline to reach her

“exceptional circumstances” argument because she did not present that argument to

the BIA in her second motion to reopen. See Umana-Escobar v. Garland, 69 F.4th

544, 550 (9th Cir 2023) (although failure to exhaust is not jurisdictional, it is

subject to the usual principles of forfeiture and waiver).

3. Petitioner’s Order to Show Cause was not defective for failing to

include the time and place of the hearing. See Gutierrez-Alm v. Garland, 62 F.4th

1186, 1196 (9th Cir. 2023) (explaining that, under 8 U.S.C. § 1252b(a)(2)(A), an

Order to Show Cause, unlike a Notice to Appear, “was not required to include the

time and place of the immigrant’s deportation proceedings,” and that “this

information could be provided in a separate document”).

PETITION FOR REVIEW DENIED.