Yenny Sanchez Martinez De Domi v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2022
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
YENNY MARICELA SANCHEZ MARTIN No. 19-72782
DE DOMINGO, AKA Yenny Maricela
Sanchez Martinez de Domingo; ASTRID Agency Nos. A209-008-324
LUDIANA DOMINGO SANCHEZ, A209-008-325
Petitioners, MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 12, 2021
San Francisco, California
Before: NGUYEN and COLLINS, Circuit Judges, and RAKOFF,** District Judge.
Petitioners Yenny Maricela Sanchez Martin de Domingo (“Sanchez
Martin”) and her minor daughter Astrid Ludiana Domingo Sanchez, citizens and
natives of Guatemala, petition for review of the order of the Board of Immigration
Appeals (“BIA”) upholding the denial by the immigration judge (“IJ”) of their
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, United States District Judge for the Southern
District of New York, sitting by designation.
motion to reopen and to rescind their in absentia removal orders, which were
issued after they failed to appear at their removal hearing. We have jurisdiction
under § 242 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252.
Reviewing for abuse of discretion, Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.
2002), we deny the petition.
1. Petitioners contend that the BIA abused its discretion in concluding that
they had failed to demonstrate that their “failure to appear was because of
exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i). The INA defines the
requisite “exceptional circumstances” as “refer[ring] to exceptional circumstances
(such as battery or extreme cruelty to the alien or any child or parent of the alien,
serious illness of the alien, or serious illness or death of the spouse, child, or parent
of the alien, but not including less compelling circumstances) beyond the control of
the alien.” See id. § 1229a(e)(1); see also Singh-Bhathal v. INS, 170 F.3d 943, 947
(9th Cir. 1999) (exceptional circumstances must include a “similarly severe
impediment” as those enumerated in the statute). We conclude that the BIA did
not abuse its discretion in determining that this standard was not met here.
Petitioners stated in their motion to reopen that Sanchez Martin had
“mistaken the date[]” of her hearing, which led her to arrive at the immigration
court two days late. The IJ concluded that, even taking into account Petitioners’
pending applications for asylum, withholding of removal, and protection under the
2
Convention Against Torture, Petitioners had not established exceptional
circumstances. Petitioners argue, as they did before the BIA, that the IJ failed to
take account of the totality of the circumstances, including Sanchez Martin’s
illiteracy and language barriers, the fact that Petitioners promptly notified the
immigration court after discovering their error, and Petitioners’ pending
applications for relief. But the IJ explicitly considered the pending applications,
and it was not an abuse of discretion for the BIA to conclude that the totality of
these factors did not amount to exceptional circumstances under the INA. See
Valencia-Fragoso v. INS, 321 F.3d 1204, 1205–06 (9th Cir. 2003) (petitioner who
was over four hours late due to a misunderstanding of the time of the hearing did
not establish exceptional circumstances, especially where the only possible relief
was a discretionary grant of voluntary departure); cf. Singh, 295 F.3d at 1038–39
(finding exceptional circumstances for mistakenly arriving two hours after the
hearing in the “highly unusual case” where, among other things, the petitioner was
certainly and concededly eligible for relief).
Petitioners also argue that the BIA should have remanded the matter to the IJ
so that she could consider Petitioners’ new allegation that Sanchez Martin
detrimentally relied on an immigration court clerk’s assistance in filing the motion
to reopen. But the BIA did not abuse its discretion in declining to remand on this
basis, given that this explanation does not address why Petitioners failed to appear
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at their hearing in the first place.1
Petitioners also briefly assert that the BIA erred in declining to reopen their
proceedings sua sponte. Although this was a discretionary decision by the BIA,
we have “jurisdiction to review Board decisions denying sua sponte reopening for
the limited purpose of reviewing the reasoning behind the decisions for legal or
constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). For the
reasons we have explained, we find no basis to conclude that the BIA “relied on an
incorrect legal premise” in denying the motion to reopen, and we therefore reject
Petitioners’ argument that the BIA erred in denying their request for sua sponte
reopening. Id.
2. In their appellate brief before the BIA, Petitioners moved to terminate
removal proceedings on the ground that the IJ lacked jurisdiction given that the
notices to appear that were issued to them did not provide the time or date of the
removal hearing. The BIA rejected this contention, and Petitioners challenge that
ruling in this court. However, this argument is foreclosed by our decision in
Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), in which we held that “a
1
Petitioners also contend that their due process rights were violated inasmuch as
they assertedly received “ineffective assistance” when their “pro bono attorney and
Mam interpreter misinformed them of the hearing date,” but no such ineffective-
assistance claim was raised before the BIA. We therefore lack jurisdiction to
consider this contention. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.
2009) (en banc).
4
notice to appear that does not specify the time and place of an alien’s initial
removal hearing vests an [IJ] with jurisdiction over the removal proceedings . . . so
long as a notice of hearing specifying this information is later sent to the alien.”
Id. at 1161 (citation omitted). In this case, Petitioners were served with incomplete
notices to appear on June 8, 2016 but were thereafter served on October 1, 2016
with a notice of hearing that stated the date and time of their hearing. Thus, under
Karingithi, jurisdiction properly vested in the immigration court.
3. Petitioners also argue that their in absentia removal orders were improper
because Petitioners were not provided information about their hearing, and the
consequences of failing to attend the hearing, in their native Mam language. An
alien can be removed in absentia “after written notice required under paragraph (1)
or (2)” of § 239(a) of the INA “has been provided to the alien or the alien’s counsel
of record.” 8 U.S.C. § 1229a(b)(5)(A). Contrary to Petitioners’ assertions, nothing
in § 239(a) requires that written or oral notice be given in an alien’s native
language. See id. § 1229(a) (stating nothing about providing information in a
foreign language); see also 8 C.F.R. § 1003.18 (same).2 We therefore reject the
argument that written or oral notice in the Mam language was required.
2
Petitioners argue that the standard notice-to-appear form supports the proposition
that oral notice in the alien’s native language is required, because it contains text
that allows the party serving the document to state whether the alien was provided
oral notice in a particular language. But whether oral notice was provided in a
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4. Shortly before oral argument in this case, the Supreme Court held in Niz-
Chavez v. Garland, 141 S. Ct. 1474 (2021), that, in order to trigger the so-called
stop-time rule of the Illegal Immigration Reform and Immigrant Responsibility
Act, aliens must be served with a “notice to appear” consisting of a single
document that contains all the information that is specified in INA § 239(a)(1).
Nothing in that decision warrants granting the petition for review here.
Petitioners argued before the BIA that their notices to appear were
jurisdictionally defective, see supra at 4–5, and that they did not receive proper
notice to trigger in absentia removal orders given that they were not served in their
native language, see supra at 5. As explained above, we have rejected those
contentions. Apart from these points, Petitioners did not adequately exhaust the
further contention that the failure to provide a complete notice to appear in a single
document under § 239(a) means that the necessary conditions for issuing an in
absentia removal order under § 240(b)(5)(A) of the INA, see 8 U.S.C.
§ 1229a(b)(5)(A), were not met. Because the Petitioners did not adequately raise
the argument before the BIA, we conclude that we lack jurisdiction to consider the
potential effect of Niz-Chavez in this case. See Martinez v. Barr, 941 F.3d 907,
particular language is statutorily relevant only if the restrictions of § 240(b)(7) of
the INA are at issue, and that is not the case here. See 8 U.S.C. § 1229a(b)(7)
(providing that, if the alien against whom an in absentia removal order is entered
was also provided oral notice, then the alien is also ineligible for certain forms of
relief for 10 years).
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922 (9th Cir. 2019). Our decision, therefore, is without prejudice to Sanchez
Martin raising that issue in a further motion to reopen before the BIA under INA
§ 240(b)(5)(C)(ii). Cf. Singh v. Garland, 24 F.4th 1315, 1320 (9th Cir. 2022).3
The petition for review is DENIED.
3
Accordingly, we deny as moot Respondent’s motion to stay proceedings in this
case pending issuance of the mandate in Singh.
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