Singh v. Holder

FILED
NOT FOR PUBLICATION SEP 18 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
AMRIT SINGH, No. 07-70553
Petitioner, Agency No. A073-412-396
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Amrit Singh, a native and citizen of India, petitions for review of the Board
of Immigration Appeals’ order dismissing his appeal from an immigration judge’s
(“IJ”) decision denying his motion to reopen deportation 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 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).
discretion the denial of a motion to reopen, and review de novo questions of law.
Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the
petition for review.
Singh contends that this petition for review was rendered moot when he was
deported from the United States because that deportation terminated these
proceedings. See 8 C.F.R. §§ 245.1(c)(8)(ii)(A), 245.2(a)(1). This contention fails
because the government’s admittedly erroneous deportation of Singh did not
constitute a “departure” within the meaning of the immigration laws. See Salgado-
Diaz v. Gonzales, 395 F.3d 1158, 1164 (9th Cir. 2005) (the term “‘departure’ in the
immigration context excludes departures illegally executed by the government”);
see also Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir. 2006) (under
IIRIRA’s permanent rules, the court has jurisdiction over a petition for review filed
by a petitioner who has been deported).
The agency did not abuse its discretion in denying Singh’s motion to reopen
based on lack of notice where the record reflects that he was personally served with
notice of the hearing at which he was ordered deported in absentia. See 8 C.F.R.
§ 1003.23(b)(4)(iii)(A)(2). Singh’s contention that the IJ violated his right to due
process by ruling on his motion before he had an opportunity to review the record
of proceedings fails because he has not established prejudice resulting from the
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alleged violation. See Robleto-Pastora v. Holder, 591 F.3d 1051, 1062 (9th Cir.
2010) (due process claim relating to inability to obtain immigration records failed
where petitioner could not show that the violation potentially affected his
eligibility for relief).
PETITION FOR REVIEW DENIED.
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