Hector Cruz-Rodas v. Eric Holder, Jr. , 533 F. App'x 723 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR ANIBAL CRUZ-RODAS, No. 11-73234
Petitioner, Agency No. A076-819-849
v.
MEMORANDUM*
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 11, 2013**
Pasadena, California
Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.
The immigration judge (“IJ”) denied Petitioner’s motion to reopen removal
proceedings filed more than a decade after he was ordered removed in absentia on
July 1, 1998. The Board of Immigration Appeals (“BIA”) dismissed Petitioner’s
*
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).
appeal and denied his motion to remand. We now deny Petitioner’s petition
for review.
The record supports the agency’s finding that Petitioner was personally
served with the document that charged him as removable, and that notice of the
hearing was mailed to Petitioner’s counsel of record at the time, which constituted
service on Petitioner, see 8 U.S.C. § 1229a(b)(5)(A); 8 C.F.R. § 1292.5(a). The IJ
also found that Petitioner’s counsel attended the hearing (demonstrating notice of
that hearing), a finding that we are not “compelled” to overturn, see 8 U.S.C.
§ 1252(b)(4)(B). In addition, Petitioner concedes that he was in fact ordered
removed.
Because Petitioner failed to appear after receiving notice, he was properly
ordered removed, as he does not dispute that he was removable as charged. See 8
U.S.C. § 1229a(b)(5)(A); Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir. 2000) (per
curiam). To obtain reopening, therefore, Petitioner was required to demonstrate
that his nonappearance resulted from exceptional circumstances beyond his
control, 8 U.S.C. § 1229a(b)(5)(C)(i), which he has not done. In addition, his
motion to reopen was untimely by more than a decade. Id. Petitioner makes no
claim of ineffective assistance (in connection with his motion to reopen) that could
potentially entitle him to equitable tolling of the applicable 180-day deadline. Any
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reliance on Lo v. Ashcroft, 341 F.3d 934 (9th Cir. 2003), is misplaced, as the
petitioners there were affirmatively misled by their counsel and filed a timely
motion to reopen. See id. at 935–36. The BIA therefore correctly approved the
IJ’s decision denying Petitioner’s motion to reopen.
In light of the foregoing discussion, the BIA also permissibly denied
Petitioner’s motion to remand for production of a transcript of the July 1, 1998,
proceeding, as Petitioner is not prejudiced by the transcript’s absence.
PETITION FOR REVIEW DENIED.
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