Maria Tapia-Hernandez v. Matthew Whitaker ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 30 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA GUADALAUPE TAPIA- No. 16-73811
HERNANDEZ,
Agency No. A076-846-703
Petitioner,
v. MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 27, 2018**
Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.
Maria Guadalaupe Tapia-Hernandez, a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’ order summarily
dismissing her appeal from an immigration judge’s (“IJ”) order denying her motion
*
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).
to reopen removal proceedings conducted in absentia. We have jurisdiction under
8 U.S.C. § 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 the petition for review.
The agency did not abuse its discretion in denying Tapia-Hernandez’s
motion to reopen based on lack of notice, where the Notice to Appear was sent by
certified mail to her correct address, she did not show that the certified mail receipt
was not signed by a responsible person at that address, and her counsel appeared in
court on the date of her hearing. See 8 U.S.C. §§ 1229(a)(1), 1229a(b)(5)(A),
(C)(ii); cf. Chaidez v. Gonzales, 486 F.3d 1079, 1083-86 (9th Cir. 2007) (service of
an Order to Show Cause sent by certified mail is effective when the return receipt
is signed by the alien or a responsible person at the alien’s address (emphasis
added)).
The agency also did not abuse its discretion in denying Tapia-Hernandez’s
motion to reopen where she did not establish that exceptional circumstances
prevented her from attending her 1998 hearing. See 8 C.F.R. § 1003.23(b)(4)(ii);
8 U.S.C. § 1229a(e)(1).
We reject Tapia-Hernandez’s contention that the IJ failed to address
evidence or arguments. See Najmabadi v. Holder, 597 F.3d 983, 990-91 (9th Cir.
2010).
2
PETITION FOR REVIEW DENIED.
3