Soo Kim v. Ashcroft

111 F. App'x 952

Opinion

MEMORANDUM

**

In Soo Kim, a native and citizen of South Korea, petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance without opinion of an Immigration Judge’s (“IJ”) denial of his motion to reopen his deportation proceedings. Because the transitional rules apply, Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), this Court has jurisdiction under 8 U.S.C. § 1105a(a) (1995). This Court reviews the BIA’s denial of a motion to reopen for an abuse of discretion. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002). We deny in part, and dismiss in part the petition for review.

The IJ did not abuse her discretion in denying Petitioner’s motion to reopen his in absentia deportation order because Petitioner failed to rebut the presumption of effective service of his notice of hearing where it was sent by certified mail to his “most recent address,” and receipt was acknowledged. See 8 U.S.C. § 1252b(c)(l); Farhoud v. INS, 122 F.3d 794, 796 (9th Cir.1997).

This Court lacks jurisdiction to review the BIA’s September 10, 2003 decision denying reconsideration because a separate petition for review was not filed with respect to that decision, and the mere existence of a pending motion to reconsider does not toll the period for review in this Court. See Stone v. INS, 514 U.S. 386, 395, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995).

Because we reach the merits of the IJ’s decision, we need not separately review the BIA’s decision to streamline Petitioner’s case. See Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1078 (9th Cir.2004) (“Because we can reach the merits of the IJ’s decision in this case, we need not, pursuant to Falcon Carriche, review the BIA’s decision to streamline. Falcon Carriche also forecloses [Petitioner’s] argument that the BIA’s streamlining decision denied her due process of law.”) (citing Falcon Carriche v. Ashcroft, 350 F.3d 845, 850-51 (9th Cir.2003)).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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.