Oscar Romero-Iraeta v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR ORLANDO ROMERO-IRAETA, No. 16-71843
Petitioner, Agency No. A099-473-471
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 13, 2018**
Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.
Oscar Orlando Romero-Iraeta, a native and citizen of El Salvador, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s order denying his motion to reopen removal
proceedings conducted in absentia. Our jurisdiction is governed by 8 U.S.C.
*
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).
§ 1252. We review for abuse of discretion the denial of a motion to reopen, and
review de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92
(9th Cir. 2005). We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion in denying Romero-Iraeta’s motion
to reopen based on lack of notice where the hearing notice was mailed to the most
recent address he provided to the immigration court, he concedes that the notice
was received at that address, and he moved without notifying the immigration
court of his new address. See 8 U.S.C. § 1229a(b)(5)(A) (“[W]ritten notice …
provided at the most recent address” given by the alien “shall be sufficient” for
purposes of conducting in absentia removal proceedings.); Popa v. Holder, 571
F.3d 890, 898 (9th Cir. 2009) (an alien that moved without updating her address
with the immigration court is not entitled to rescind an in absentia removal order);
cf. Salta v. INS, 314 F.3d 1076, 1079 (9th Cir. 2002) (discussing evidence
sufficient to overcome the presumption of proper delivery).
The agency also did not abuse its discretion in denying the motion to reopen
for new relief as untimely, where the motion was over seven years late, see 8 CFR
§ 1003.23(b)(1), and he failed to establish the due diligence required for equitable
tolling. See Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (describing due
diligence).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 16-71843