Gonzalez-Gomez v. Holder

FILED
NOT FOR PUBLICATION SEP 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL GONZALEZ-GOMEZ; ANA No. 07-75044
PAOLA GONZALEZ,
Agency Nos. A096-342-884
Petitioners, A096-342-885
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 29, 2011**
Pasadena, California
Before: SCHROEDER and GOULD, Circuit Judges, and SEEBORG, 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 Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
Rafael Gonzalez-Gomez and Ana Paola Gonzalez, natives and citizens of
Mexico, petition for review of the Board of Immigration Appeals’s dismissal of
their appeal of the denial of their motion to reopen the proceedings in which they
were removed in absentia. We have jurisdiction under 8 U.S.C. § 1252. We
review a BIA’s denial of a motion to reopen for abuse of discretion. Perez v.
Mukasey, 516 F.3d 770, 773 (9th Cir. 2008). Questions of law are reviewed de
novo, and findings of fact for substantial evidence. Ahmed v. Holder, 569 F.3d
1009, 1012 (9th Cir. 2009).
It is undisputed that the petitioners received notice of the hearing and did not
appear at the scheduled time. The motion to reopen contains only an unsworn
letter to the Immigration Judge stating that they arrived at the designated place but
were late because they were given erroneous directions. The motion was
supported by no affidavits or other evidentiary material as required by 8 C.F.R.
§ 1003.23(b)(3).
Even accepting their assertions as true, however, the petitioners’ assertions
in the declaration were not sufficient to show exceptional circumstances justifying
rescission of the removal order as required by 8 U.S.C. § 1229a(e)(1). Avoidable
difficulties in reaching the site of the hearing do not suffice. See Sharma v. INS, 89
F.3d 545 (9th Cir. 1996).
2
Petitioners’ claim of denial of due process is without merit because they
have failed to establish either that they actually appeared or that extraordinary
circumstances excused their failure.
The petition for review is DENIED.
3