Mikalai Mikula v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
APR 15 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIKALAI MIKULA, No. 13-72192
Petitioner, Agency No. A079-244-999
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 4, 2016**
Pasadena, California
Before: FARRIS, BEA, and M. SMITH, Circuit Judges.
Mikalai Mikula petitions for review of the Board of Immigration Appeals’
order denying his motion to reopen removal proceedings conducted in absentia.
We have jurisdiction under 8 U.S.C. § 1252. We review the denial of a motion to
reopen for abuse of discretion and defer to the BIA’s interpretations of the
*
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).
Immigration and Nationality Act depending on the thoroughness, reasonableness,
consistency, and persuasiveness of the BIA’s analysis. See Kyong Ho Shin v.
Holder, 607 F.3d 1213, 1219 (9th Cir. 2010). We deny the petition for review.
The BIA did not abuse its discretion by finding that notice was proper under
8 U.S.C. § 1229(a), where Mikula was personally served a Notice to Appear and
hearing notices informing him of the time, date, and place of his removal hearing
and containing advisals of the consequences of failing to appear. See Khan v.
Ashcroft, 374 F.3d 825, 828–29 (9th Cir. 2004) (holding notice was proper where
INS adhered to statutory notice requirements). We are not persuaded by Mikula’s
argument that his Notice to Appear and hearing notices did not adequately explain
the consequences of failing to appear under 8 U.S.C. § 1229a(b)(5), as required by
8 U.S.C. § 1229(a). The Board reasonably interpreted these provisions to require
notice of the consequences of failing to appear, namely that an order of removal
may issue, and not other details of the statutory framework for applying,
reviewing, and rescinding an in absentia removal order.
Mikula’s argument that the language in his hearing notices was affirmatively
misleading is without merit. Advising an alien in removal proceedings that the
hearing “may” be held in his absence and an order of removal “will be entered”
upon certain findings suitably reflects statutory directives.
PETITION FOR REVIEW DENIED.
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