Modesto Montes v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 2 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MODESTO MONTES, No. 16-70748
Petitioner, Agency No. A073-936-773
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Modesto Montes, a native and citizen of El Salvador, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order summarily affirming an
immigration judge’s (“IJ”) order denying his motion 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
*
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).
review de novo questions of law. Sembiring v. Gonzales, 499 F.3d 981, 985 (9th
Cir. 2007). We deny the petition for review.
The agency did not err or abuse its discretion in denying Montes’ motion to
reopen based on lack of notice, where the notice of hearing was mailed to his most
recent address on record. See 8 U.S.C. §§ 1229(a)(2)(B), 1229a(b)(5)(B),
(b)(5)(C)(ii); Velasquez-Escovar v. Holder, 768 F.3d 1000, 1004 (9th Cir. 2014)
(“[A]liens are entitled to notice unless they fail to give a current address to the
government or fail to let the government know when they move.”); see also Matter
of M-R-A-, 24 I. & N. Dec. 665, 675 (BIA 2008) (“[A] respondent cannot evade
delivery of a properly sent Notice of Hearing by relocating without providing the
required change of address and then request reopening of in absentia proceedings
on the basis of a claim that he did not receive notice.”).
Contrary to Montes’ contention, the agency’s determination that he failed to
demonstrate an exceptional situation warranting sua sponte reopening was
premised on a proper understanding of the law regarding the review of his
eligibility for Temporary Protected Status (“TPS”). See Bonilla v. Lynch, 840 F.3d
575, 588 (9th Cir. 2016) (“[T]his court has 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.”); Matter of Barrientos, 24 I.
2 16-70748
& N. Dec. 100, 102 (BIA 2007) (an alien is permitted to assert his or her right to
TPS protection during ongoing removal proceedings); cf. Garcia v. Holder, 621
F.3d 906, 912 (9th Cir. 2010) (a motion to reopen will not be granted unless it
establishes a prima facie case for relief).
The record does not support Montes’ contention that the BIA’s order failed
to state a legal standard or relied on an incorrect legal standard, and to the extent
Montes contends the BIA erred in summarily affirming the IJ’s decision, this
contention lacks merit. See 8 C.F.R. § 1003.1(e)(4)(i); Tijani v. Holder, 628 F.3d
1071, 1074 n.1 (9th Cir. 2010).
PETITION FOR REVIEW DENIED.
3 16-70748