Alejandro Luevano-Zapata v. Jefferson Sessions , 697 F. App'x 514 ( 2017 )

FILED
NOT FOR PUBLICATION
SEP 08 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO LUEVANO-ZAPATA No. 14-71870
Petitioner, BIA No. A088-447-602
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III,
ATTORNEY GENERAL
Respondent.
Appeal from the Board of Immigration Appeals
Submitted August 15, 2017**
San Francisco, California
Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and EZRA,***
District Judge.
Alejandro Luevano-Zapata (“Petitioner”) seeks review of a Board of
Immigration Appeals (“BIA”) decision dismissing his appeal of the denial of his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
motion to reopen an in abstentia removal order, the latter of which was entered
after Petitioner failed to appear at a scheduled removal hearing. In his petition for
review to this Court, Petitioner raises two issues: (1) whether the BIA erred in
finding that his motion to reopen the late arrival claim was untimely; and
(2) whether the BIA erred in determining, regardless of the timeliness of
Petitioner’s motion, that he failed to appear. We have jurisdiction under 8 U.S.C.
§ 1252(a)(1). We deny Petitioner’s petition for review and affirm the BIA’s
decision.
Because the parties are familiar with the facts of the case, we do not recite
them except to the extent necessary to aid in understanding this disposition. We
review the BIA’s denial of a motion to reopen and rescind for abuse of discretion.
Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). The BIA abuses its
discretion “when it acts ‘arbitrarily, irrationally, or contrary to the law.’” Movsisian
v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005) (quoting Lainez-Ortiz v. I.N.S., 96
F.3d 393, 395 (9th Cir. 1996)).
Regardless of the timeliness of Petitioner’s motion, the BIA, proceeding to
the merits of the claim, did not err in finding that Petitioner failed to appear. To
determine whether a petitioner failed to appear, we look to whether the
Immigration Judge was still on the bench when the late petitioner arrived. See,
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e.g., Perez v. Mukasey, 516 F.3d 770, 774–75 (9th Cir. 2008); Valencia-Fragoso v.
I.N.S., 321 F.3d 1204, 1205 (9th Cir. 2003) (per curiam); Jerezano v. I.N.S., 169
F.3d 613, 615 (9th Cir. 1999).
Here, the BIA correctly determined that Petitioner failed to appear because,
while Petitioner produced evidence that he arrived to his hearing approximately
45 minutes late, he was unable to establish that the Immigration Judge was still on
the bench when he arrived. In fact, Petitioner concedes that the courtroom door
was locked when he arrived. Accordingly, the BIA did not abuse its discretion in
declining to reopen the in absentia removal order because the BIA correctly
determined that Petitioner failed to appear. Thus, the BIA’s dismissal of
Petitioner’s appeal was proper, regardless of the timeliness of Petitioner’s motion
to reopen.
For these reasons, the BIA’s decision is AFFIRMED and Petitioner’s
petition for review is DENIED.
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