Carmen Valus v. Loretta Lynch

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARMEN VALUS, No. 15-71577
Petitioner, Agency No. A206-267-544
v.
LORETTA E. LYNCH, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Carmen Valus, a native and citizen of Romania, petitions for review of the
Board of Immigration Appeals’ order dismissing her appeal from an immigration
judge’s decision denying her motion to reopen removal proceedings conducted in
absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of
*
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).
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 or violate due process in denying
Valus’ motion to reopen, based on lack of notice, where Valus was personally
served a Notice to Appear that informed her of her obligation to update the court
with a current address, and the notice of her hearing was mailed to the most recent
address she provided, but was returned as undeliverable. 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. § 1229(c) (“Service by mail [of a
hearing notice] shall be sufficient if there is proof of attempted delivery to the last
address provided by the alien . . .”); 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).
Notice of Valus’ hearing also comported with due process. See Popa v.
Holder, 571 F.3d 890, 897 (9th Cir. 2009) (“Due process is satisfied if service is
conducted in a manner reasonably calculated to ensure that notice reaches the
alien.” (citation and quotation marks omitted)).
Contrary to Valus’ contention, the agency did not violate due process by
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allegedly not providing the contents of the Notice to Appear in Romanian. 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, 204 F.3d at 1246.
PETITION FOR REVIEW DENIED.
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