THAN v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-04-21No. No. 20-70357

Summary · law.co

Holding. The petition for review was denied in part and dismissed in part for lack of jurisdiction. The court upheld the BIA's affirmance of the denial of the motion to reopen, finding no abuse of discretion where proper notice was provided at the address most recently registered with the immigration court.

Roeuth Than, a Cambodian national, sought judicial review of the Board of Immigration Appeals' decision to dismiss his appeal of a removal order entered while he was absent from proceedings. Than challenged both the denial of his motion to reopen the case and the underlying removal order itself. The court had limited authority to review the case, as certain claims fell outside its jurisdiction.

On the merits of the reopening motion, the court found no abuse of discretion by the BIA. Than had been properly notified of his hearing at his most recent address on file with the immigration court—his Kent, Washington residence. Although Than later moved to Des Moines and notified the postal service of the address change, he failed to notify the immigration court of his new location as required. This procedural failure did not undermine the validity of the notice provided at his last reported address.

The court lacked jurisdiction to review two additional claims: Than's contention that he was not removable as charged had not been exhausted in prior proceedings, and the denial of sua sponte reopening fell outside the narrow circumstances in which the court may review such denials.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether adequate notice of hearing was provided when sent to the most recent address on file, despite petitioner's undisclosed change of address
Whether petitioner exhausted claims of removability in prior proceedings
Scope of court jurisdiction to review denial of sua sponte reopening

Procedural posture

Than petitioned for review of the BIA's dismissal of his appeal challenging an immigration judge's denial of his motion to reopen and rescind a removal order entered in absentia.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Roeuth Than (“Than”), a native and citizen of Cambodia, petitions for review of the Board of Immigration Appeals’ (“BIAs”) dismissal of his appeal challenging the immigration judges denial of Thans motion to reopen proceedings and rescind a removal order entered in absentia. We have jurisdiction under 8 U.S.C. § 1252 to conduct judicial review in part, and we lack jurisdiction in part. We therefore deny the petition for review in part and dismiss it in part for lack of jurisdiction.

Because the facts are known to the parties, we do not repeat them here except as necessary to explain our decision.

We review the denial of a motion to reopen for abuse of discretion. See, e.g., Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014) (citing Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir. 2005)). We must uphold the decision of the BIA unless it “acted arbitrarily, irrationally, or contrary to law.” Lo v. Ashcroft, 341 F.3d 934, 937 (9th Cir. 2003) (quoting Celis-Castellano v. Ashcroft, 298 F.3d 888, 891 (9th Cir. 2002)). We review the BIAs legal conclusions de novo and its factual findings for substantial evidence. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (citing Bhasin, 423 F.3d at 983).

The BIA did not abuse its discretion in affirming the denial of the motion to reopen proceedings on the basis that Than was given proper notice of the hearing at his Kent, Washington address. Than was advised in the notice to appear that he must immediately provide the immigration court notice when he changed addresses. He provided the immigration court his Kent, Washington address, but not his Des Moines, Washington address. Than did advise the U.S. Postal Service that he had moved from Kent to Des Moines, but he did not also notify the immigration court. The BIA did not abuse its discretion in upholding the denial of the motion to reopen on the basis that Than was given adequate notice of his hearing at his Kent, Washington address, i.e., the most recent address provided to the immigration court. See 8 U.S.C. § 1229a(b)(5)(A) (“[N]otice ․ shall be considered sufficient ․ if provided at the most recent address provided under section 1229(a)(1)(F) of this title.”).

Than also contends that he is not removable as charged. This claim, however, was not exhausted. We therefore lack jurisdiction to consider it. Alvarado v. Holder, 759 F.3d 1121, 1127 (9th Cir. 2014).

We also lack jurisdiction to review the denial of sua sponte reopening. See Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1115 (9th Cir. 2019) (citing Ekimian v. INS, 303 F.3d 1153, 1154 (9th Cir. 2002)). This case does not fit into the narrow exception that applies when denial of sua sponte reopening rests on “legal or constitutional error.” Id. (internal quotation marks omitted) (quoting Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016)).

PETITION DENIED in part; DISMISSED in part.