Jaime Funez-Sepeda v. Jefferson Sessions, III ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAIME OTONIEL FUNEZ-SEPEDA, No. 17-71649
Petitioner, Agency No. A095-736-494
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 10, 2018**
Before: CANBY, W. FLETCHER, and CALLAHAN, Circuit Judges.
Jaime Otoniel Funez-Sepeda, a native and citizen of Honduras, petitions pro
se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s denial of his motion to reopen removal
proceedings conducted in absentia, and denying his motion to remand. Our
*
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).
jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the
denial of a motions to reopen and remand. Mohammed v. Gonzales, 400 F.3d 785,
791 (9th Cir. 2005); Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062 (9th Cir.
2008). We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion in denying Funez-Sepeda’s motion to
reopen as untimely, where it was filed six years after his order of removal in
absentia, and Funez-Sepeda failed to establish lack of notice. See 8 C.F.R.
§ 1003.23(b)(4)(i), (ii) (setting 180-day deadline for motions to reopen in absentia
removal orders based on exceptional circumstances, and no deadline for motions
based on lack of notice of a hearing or where the alien was in custody); 8 U.S.C. §
1229a(b)(5)(C). Funez-Sepeda was personally served with the notice to appear,
and his attorney of record was properly served with the hearing notice. See 8
C.F.R. § 1003.26(c)(2) (notice sufficient for in absentia purposes when “written
notice of the time and place of proceedings and written notice of the consequences
of failure to appear were provided to the alien or the alien’s counsel of record”);
Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir. 2000) (hearing notice is proper if
served on alien’s counsel of record).
In addition, Funez-Sepeda did not establish that he was in state custody at
the time of his final hearing. See Carrillo-Gonzalez v. INS, 353 F.3d 1077, 1079
(9th Cir. 2003) (unsubstantiated statements of counsel do not constitute evidence).
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The agency also did not abuse its discretion in denying the motion, where
Funez-Sepeda failed to establish that reopening was warranted based on changed
country conditions and that he is prima facie eligible for such relief. See 8 C.F.R. §
1003.2(c)(3)(ii); Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228 (9th Cir. 2016)
(the BIA may deny a motion to reopen for failure to establish prima facie
eligibility for the relief sought).
We lack jurisdiction to review the BIA’s discretionary denial of sua sponte
reopening. Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (the court’s
jurisdiction over sua sponte determination limited to reviewing for underlying legal
or constitutional error).
Finally, the BIA did not abuse its discretion by denying Funez-Sepeda’s
motion to remand where the BIA considered the evidence submitted and acted
within its broad discretion in determining that the evidence was insufficient to
warrant a remand. See Romero-Ruiz, 538 F.3d at 1062 (“The BIA abuses its
discretion if its decision is arbitrary, irrational, or contrary to law.” (internal
quotations omitted)).
We deny Funez-Sepeda’s request for mediation.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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