Malkit Kaur v. Loretta E. Lynch , 670 F. App'x 952 ( 2016 )

FILED
NOT FOR PUBLICATION NOV 22 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MALKIT KAUR and GUNDEEP KAUR, No. 12-73834
Petitioners, Agency Nos. A075-310-294
A075-310-295
v.
LORETTA E. LYNCH, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2016**
Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
Malkit Kaur and Gundeep Kaur, natives and citizens of India, petition for
review of the Board of Immigration Appeals (“BIA”) order dismissing their appeal
from an immigration judge’s decision denying petitioners’ motion to reopen
proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252.
*
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).
We review for abuse of discretion the denial of a motion to reopen, review for
substantial evidence factual determinations, and review de novo due process
claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny
the petition for review.
The agency did not abuse its discretion in denying petitioners’ motion to
reopen, based on lack of notice, where substantial evidence supports the agency’s
conclusion that the notice of the hearing was sent to a law office of their counsel of
record, and an attorney associated with that counsel of record appeared at the
hearing. See 8 C.F.R. § 1003.23(b)(4)(ii) (a motion to reopen to rescind an in
absentia removal order may be “filed at any time if the alien demonstrates that he
or she did not receive notice” of the hearing); 8 U.S.C. § 1229(a) (permitting
written notice of time and place of a hearing through mail to alien’s counsel of
record); Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir. 2000) (service on counsel of
record is statutorily sufficient).
Nor did the agency violate petitioners’ due process rights, as notice of their
hearing was reasonably calculated to reach them. See Popa v. Holder, 571 F.3d
890, 897 (9th Cir. 2009) (“Due process is satisfied if service is conducted in a
manner reasonably calculated to ensure that notice reaches the alien” (citation and
quotation marks omitted)).
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The agency did not abuse its discretion in denying as untimely petitioners’
motion to reopen, based on ineffective assistance of counsel, where petitioners
filed their motion more than nine years after their final orders of removal, see 8
C.F.R. § 1003.23(b)(4)(ii) (setting a 180-day filing deadline), and failed to
establish the due diligence required to warrant equitable tolling of the deadline, see
Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (equitable tolling is
available to an alien who is prevented from timely filing a motion to reopen due to
deception, fraud or error, as long as the alien exercises due diligence in discovering
such circumstances).
Petitioners’ contentions that the BIA did not provide sufficient reasoning
and overlooked evidence are not supported by the record. See Najmabadi v.
Holder, 597 F.3d 983, 990 (9th Cir. 2010).
In light of this disposition, we do not reach petitioners’ remaining
contentions.
PETITION FOR REVIEW DENIED.
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