Saringh Heybecyan v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
DEC 23 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SARINGH HEYBECYAN, No. 13-70127
Petitioner, Agency No. A088-102-629
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 10, 2015**
Pasadena, California
Before: GOULD and BERZON, Circuit Judges, and ZOUHARY,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jack Zouhary, District Judge for the U.S. District
Court for the Northern District of Ohio, sitting by designation.
Saringh1 Heybecyan seeks review of the BIA’s denial of her motion to
reopen immigration proceedings.
The BIA’s decision is reviewed for an abuse of discretion. Sembiring v.
Gonzales, 499 F.3d 981, 985 (9th Cir. 2007). “The BIA abuses its discretion when
it acts arbitrarily, irrationally or contrary to the law.” Id. (internal alterations
omitted) (quoting Movsisian v. Gonzales, 395 F.3d 1095, 1098 (9th Cir. 2007)).
Heybecyan maintains the BIA abused its discretion by denying her motion to
reopen because she did not receive notice of the hearing in which an immigration
judge ordered her removed. She contends the immigration court did not send
notice to the proper address.
We disagree. The immigration court sent the notice of hearing to the
“mailing” address Heybecyan provided. Notice sent to an alien’s “most recent
address” is “sufficient” under the Immigration and Nationality Act, see 8 U.S.C. §
1229a(b)(5)(A); 8 C.F.R. § 1208.2(c)(3)(ii), and also satisfies due process, see
Popa v. Holder, 571 F.3d 890, 897–98 (9th Cir. 2009). Heybecyan has not
challenged the presumption of effective delivery. See Salta v. INS, 314 F.3d 1076
(9th Cir. 2002).
1
In many of the record documents, Heybecyan’s first name is spelled
“Sarineh.” Because, however, this appeal is titled Saringh Heybecyan v. Lynch, we
use the latter spelling.
2
Although Heybecyan may not have actually received notice, in these
circumstances she is charged with having constructively done so. See Popa, 571
F.3d at 897–98; In re G-Y-R-, 23 I. & N. Dec. 181, 189 (BIA 2001). She was
advised of her responsibility to keep the immigration court apprised of her address.
See 8 U.S.C. § 1229(a)(1)(F), (c). She has not challenged as ineffective the
assistance of Shirak Khojayan, the non-attorney representative who appears to
have provided the immigration court with Heybecyan’s mailing address. Nor does
she dispute that she did not file a change of address form or otherwise notify the
immigration court that the mailing address Khojayan provided on her behalf was
incorrect. Accordingly, we conclude that the BIA’s decision to deny Heybecyan’s
motion to reopen was not arbitrary, irrational, or contrary to law.
PETITION DENIED.
3