Hoa Nguyen v. Merrick Garland

FILED
NOT FOR PUBLICATION
APR 21 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOA THI AN NGUYEN, No. 20-70090
Petitioner, Agency No. A099-764-681
v.
MEMORANDUM*
MERRICK B. GARLAND,
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 12, 2021
Seattle, Washington
Before: HAWKINS and CALLAHAN, Circuit Judges, and FITZWATER,** District
Judge.
Hoa Thi An Nguyen (“Nguyen”), a native and citizen of Vietnam, petitions for
review of the Board of Immigration Appeals’ (“BIA’s”) dismissal of her appeal
challenging the immigration judge’s denial of her motion to reopen proceedings and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Sidney A. Fitzwater, United States District Judge for the
Northern District of Texas, sitting by designation.
rescind a removal order entered in absentia. We have jurisdiction under 8 U.S.C. §
1252 and deny the petition.
We review the denial of a motion to reopen for abuse of discretion. See, e.g.,
Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014) (citing Bhasin v. Gonzales, 423 F.3d
977, 983 (9th Cir. 2005)). We must uphold the decision of the BIA unless it “acted
arbitrarily, irrationally, or contrary to law.” Lo v. Ashcroft, 341 F.3d 934, 937 (9th
Cir. 2003) (quoting Celis-Castellano v. Ashcroft, 298 F.3d 888, 891 (9th Cir. 2002)).
We review the BIA’s legal conclusions de novo and its factual findings for substantial
evidence. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (citing Bhasin, 423
F.3d at 983).
Because the facts are known to the parties, we do not repeat them here except
as necessary to explain our decision.
The BIA did not abuse its discretion in dismissing Nguyen’s appeal of the
denial of her motion to reopen proceedings and rescind the removal order, which she
based on lack of notice. Nguyen did not inform the United States Citizenship and
Immigration Services (“USCIS”) of an address change from Washington to
California; the notice to appear and hearing notices were sent by regular mail to the
last address that she provided; and the BIA reasonably concluded that she did not
present sufficient evidence to rebut the weaker presumption of delivery. See
-2-
Sembiring v. Gonzales, 499 F.3d 981, 988-89 (9th Cir. 2007) (identifying factors
relevant to evaluating a petitioner’s rebuttal of the presumption of effective service).
Nor has Nguyen provided a legal basis to conclude that a third party’s application to
the agency on her behalf amounted to a global update of her address of record with the
USCIS or otherwise provided constructive knowledge that she had moved to San Jose,
California.
For the same reasons, we also reject Nguyen’s due process argument. See
Dobrota v. INS, 311 F.3d 1206, 1211 (9th Cir. 2002) (holding that the government
satisfies due process requirements by mailing notice to the last address that the non-
citizen provided).
PETITION DENIED.
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