Michael Sequeira Osorto v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 13 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MICHAEL U. SEQUEIRA OSORTO, No. 20-72162
Petitioner, Agency No. A209-240-020
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 7, 2021**
Portland, Oregon
Before: W. FLETCHER, IKUTA, and BRESS, Circuit Judges.
Michael Sequeira Osorto seeks review of a decision of the Board of
Immigration Appeals (BIA) affirming the decision of an Immigration Judge (IJ) to
*
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).
deny his motion to reopen and rescind his order of removal entered in absentia.
We have jurisdiction under 8 U.S.C. § 1252.
Because Sequeira conceded that he received actual notice of the hearing in
which he was ordered removed in absentia, and because the notice met the
applicable statutory requirements, see 8 U.S.C. § 1229a(b)(5)(C)(ii), we reject
Sequeira’s argument that he did not receive notice because he relied on statements
by a government employee that he did not need to attend the hearing. Therefore,
the IJ and BIA did not err in concluding that Sequeira’s in absentia removal order
could be rescinded only if he “demonstrate[d] that the failure to appear was
because of exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i). The BIA
and IJ did not abuse their discretion in ruling that Sequeira’s decision to rely on the
oral statements of an unnamed government employee instead of the official,
written notice of the hearing failed to demonstrate “exceptional circumstances”
beyond Sequeira’s control. See Singh-Bhathal v. INS, 170 F.3d 943, 946-47 (9th
Cir. 1999); 8 U.S.C. § 1229a(e)(1). We lack jurisdiction to review the IJ and the
BIA’s decision not to reopen the removal proceedings sua sponte. See Lona v.
Barr, 958 F.3d 1225, 1236–37 (9th Cir. 2020).
We reject Sequeira’s argument that the BIA and IJ abused their discretion by
failing to consider the merits of his asylum eligibility, because Sequeira failed to
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submit an application for asylum relief with his motion to reopen. Tadevosyan v.
Holder, 743 F.3d 1250, 1255 (9th Cir. 2014).
Sequeira’s claims that he was defrauded by the government and that he is
prima facie eligible for protection or withholding for removal are unexhausted, and
therefore we lack jurisdiction to reach the merits of those claims. See Barron v.
Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004).
DISMISSED IN PART AND DENIED IN PART.
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