Otilio Ostorga Cruz v. Jefferson Sessions

NOT FOR PUBLICATION FILED
MAR 16 2017
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OTILIO OSTORGA CRUZ, No. 15-72889
Petitioner, Agency No. A070-639-740
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Otilio Ostorga Cruz, a native and citizen of Guatemala, petitions for review
of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s order denying his motion to reopen removal proceedings
*
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).
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
constitutional claims. 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 Ostorga Cruz’s motion to
reopen, based on lack of notice, where Ostorga Cruz no longer disputes that he was
personally served a Notice to Appear (“NTA”) that informed him of his obligation
to update the court with a current address, and he failed to inform the court that the
address listed on his NTA was no longer his current address. See 8 C.F.R.
§ 1003.23(b)(4)(ii) (a motion to reopen in absentia proceedings based on lack of
notice may be filed at any time); 8 U.S.C. § 1229a(b)(5)(B) (no notice of hearing
required if the alien has failed to inform the government of a change in address).
Contrary to Ostorga Cruz’s contention, the agency did not err or violate due
process by not providing the contents of the NTA in Spanish. See Flores-Chavez
v. Ashcroft, 362 F.3d 1150, 1155 n.4 (9th Cir. 2004) (“Current law does not require
that the Notice to Appear . . . be in any language other than English.”); Lata v. INS,
204 F.3d 1241, 1246 (9th Cir. 2000) (an alien must show error and prejudice to
prevail on a due process claim).
PETITION FOR REVIEW DENIED.
2 15-72889