Estela Godinez Domingo v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTELA GODINEZ DOMINGO; No. 20-70901
RODOLFO HERNANDEZ GODINEZ,
Agency Nos. A215-691-185
Petitioners, A215-691-186
v.
MEMORANDUM *
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 15, 2023**
Portland, Oregon
Before: TALLMAN, RAWLINSON, and SUNG, Circuit Judges.
Petitioners Estela Godinez Domingo and Rodolfo Hernandez Godinez
petition for review of the Board of Immigration Appeals’ (BIA) decision
dismissing their appeal of the Immigration Judge’s (IJ) denial of Petitioners’
*
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).
motion to reopen and request to rescind their in absentia orders of removal to
Guatemala. We review the BIA’s ruling on a motion to reopen for abuse of
discretion and “will reverse the denial of a motion to reopen only if the Board
acted arbitrarily, irrationally, or contrary to law.” Martinez-Hernandez v. Holder,
778 F.3d 1086, 1088 (9th Cir. 2015) (per curiam) (internal citations omitted). For
the reasons below, we deny the petition.
1. The BIA did not abuse its discretion in denying Petitioners’ motion to
reopen because Petitioners did not show exceptional circumstances that would
excuse their failure to appear at their merits hearing. 8 U.S.C. §§ 1229a(b)(5),
(e)(1). Petitioners rely on Singh v. INS, 295 F.3d 1037, 1040 (9th Cir. 2002), to
argue that missing a hearing by mistake can satisfy the exceptional circumstances
requirement to reopen. But Singh limited its holding to circumstances where the
noncitizen was otherwise eligible for immigration relief and “the denial [of a
motion to reopen] leads to the unconscionable result of deporting [that]
individual.” Id. Because Petitioners are not otherwise entitled to relief, the BIA’s
denial of their motion to reopen does not lead to an unconscionable result. See
Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996) (holding no exceptional
circumstances where a noncitizen was one hour late “due to traffic congestion and
2
trouble finding parking”). 1
2. Petitioners were not deprived of their right to procedural due process
when they received a Notice to Appear (NTA) in English. It is undisputed that
Petitioners do not speak English. But as Petitioners acknowledge, they had
successfully attended previous immigration hearings; knew about their December
6, 2018 hearing despite receiving an NTA in English; received the NTA for their
November 20, 2018 hearing before the date of the hearing; and were able to ask
their attorney for assistance with understanding the new notice. The new notice
therefore was reasonably calculated to reach Petitioners and did not violate their
due process rights. Khan v. Ashcroft, 374 F.3d 825, 828-29 (9th Cir. 2004)
(holding agency could reasonably assume English NTA would provide sufficient
notice where noncitizen had received and complied with earlier notices in English).
PETITION DENIED.
1
We reach the same result even assuming Petitioners attempted to go to the
courthouse in person after their attorney informed them of the actual time of their
merits hearing.
3