Blas Garcia-Cisneros v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BLAS GARCIA-CISNEROS, No. 18-73080
Petitioner, Agency No. A078-069-237
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 10, 2021**
San Francisco, California
Before: HURWITZ and BRESS, Circuit Judges, and CORKER,*** District Judge.
After Blas Garcia-Cisneros, a native and citizen of Mexico, was charged with
removability, he gave the immigration court a mailing address and was released on
*
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).
***
The Honorable Clifton L. Corker, United States District Judge for the
Eastern District of Tennessee, sitting by designation.
bond pending a removal hearing. Garcia then moved without informing the court.
He claims he did not receive two notices of his removal hearing date, one mailed
before he moved, and the other after. Garcia failed to appear at the hearing and was
ordered removed in absentia. Four years later, Garcia filed a motion to reopen,
asserting lack of notice of the removal hearing, equitable tolling of the lapsed
deadline to reopen, and changed country conditions. An Immigration Judge (“IJ”)
denied relief, and the Board of Immigration Appeals (“BIA”) dismissed Garcia’s
appeal. We deny Garcia’s petition for review in part and dismiss it in part.
1. A hearing notice is presumed received when “properly directed” to the
alien’s last provided address. See Busquets-Ivars v. Ashcroft, 333 F.3d 1008, 1010
(9th Cir. 2003) (quoting Rosenthal v. Walker, 111 U.S. 185, 193 (1884)); Matter of
M-R-A-, 24 I. & N. Dec. 665, 673 (BIA 2008). Although “delivery by regular mail
does not raise the same ‘strong presumption’ as certified mail,” the burden remains
on the alien to rebut the presumption of receipt. Salta v. INS, 314 F.3d 1076, 1079
(9th Cir. 2002). The IJ did not abuse his discretion in concluding that Garcia’s bare
allegation of nonreceipt did not rebut the presumption. See Go v. Holder, 744 F.3d
604, 609 (9th Cir. 2014) (noting standard of review on motion to reopen). And, after
Garcia moved without updating his address, he was no longer entitled to notice. See
8 U.S.C. § 1229(a)(2)(B) (“[W]ritten notice shall not be required . . . if the alien has
failed to provide the address required . . . .”); see also Velasquez-Escovar v. Holder,
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768 F.3d 1000, 1004 (9th Cir. 2014) (stating that “aliens are entitled to notice unless
they fail to give a current address to the government or fail to let the government
know when they move”).
2. Garcia is not entitled to reopening because the IJ failed to warn him
orally of the consequences of failing to appear when he was released on bond.
Matter of M-S-, 22 I. & N. Dec. 349, 355-56 (BIA 1998), upon which Garcia relies,
does not aid him. In that case, an asylum officer failed to warn an applicant of the
consequences of failing to appear before an IJ when serving a notice of hearing. Id.
at 350. The BIA interpreted a provision of the INA not applicable here—8 U.S.C.
§ 1229a(b)(7)—and concluded that the alien was not precluded from seeking certain
discretionary relief by virtue of her failure to appear. Id. at 356–57. And, in contrast
to the petitioner in M-S-, Garcia signed an acknowledgement on the Notice to Appear
that he was warned in his native language that failing to appear could result in a
removal order in absentia.
3. Nor was Garcia entitled to equitable tolling of the deadline to move to
reopen. Equitable tolling is available “when a petitioner is prevented from filing
because of deception, fraud, or error, as long as the petitioner acts with due
diligence.” Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003). Garcia claims
that during a brief encounter with Immigration and Customs Enforcement agents in
September 2012, the agents failed to inform him of his pending removal hearing.
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But the agency considered this claim and engaged in the correct “fact-intensive and
case-specific” assessment of “the reasonableness of petitioner’s actions” under the
circumstances. Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011). Because
Garcia did not claim he was affirmatively misled or prevented from inquiring about
his case for over four years, the “particular circumstances” of this case do not compel
a finding that he exercised due diligence. Id. at 679.
4. Garcia’s claim of changed conditions in Mexico would make his
motion to reopen timely only if based on evidence that “is material and was not
available and could not have been discovered or presented at the previous
proceeding.” 8 C.F.R. § 1003.23(b)(4)(i); see also Chandra v. Holder, 751 F.3d
1034, 1036-37 (9th Cir. 2014). Evidence of changed conditions must be
“qualitatively different” from evidence previously available. Malty v. Ashcroft, 381
F.3d 942, 945 (9th Cir. 2004). Even if, as Garcia argues (and the government
concedes) there is increasing cartel violence in Mexico, the BIA did not abuse its
discretion in concluding that Garcia failed to demonstrate qualitatively different
conditions from those in existence at the time of his removal order. Cf. Najmabadi
v. Holder, 597 F.3d 983, 987-89 (9th Cir. 2010) (declining to find changed
conditions where the claimant showed that Iran’s poor human rights record
worsened).
5. We lack jurisdiction over Garcia’s contention that the agency should
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have exercised its power to reopen removal proceedings sua sponte because the
agency did not rest its decision on “legal or constitutional error.” Menendez v.
Whitaker, 908 F.3d 467, 471 (9th Cir. 2018). Rather, the BIA determined that Garcia
had not “demonstrated the requisite exceptional circumstances to justify sua sponte
reopening.”
PETITION FOR REVIEW DENIED IN PART AND DISMISSED IN
PART.
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