Andrey Cherba v. Eric Holder, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 24 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ANDREY CHERBA, No. 12-73352
Petitioner, Agency No. A071-378-762
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 18, 2014**
Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
Andrey Cherba, native of the former USSR and citizen of Ukraine, petitions
pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing
his appeal from an immigration judge’s (“IJ”) decision denying his motion to
reopen removal proceedings conducted in absentia. Our jurisdiction is governed
*
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).
by 8 U.S.C. § 1252. See Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir.
2007). We review for abuse of discretion the denial of a motion to reopen, and
review de novo constitutional claims and questions of law. Mohammed v.
Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in
part the petition for review.
The agency did not abuse its discretion in denying reopening based on lack
of notice because Cherba was served in person with the Notice to Appear (“NTA”),
which specified the charges against him and warned him explicitly of the
consequences of his failure to appear. See Salta v. INS, 314 F.3d 1076, 1079 (9th
Cir. 2002) (citing 8 U.S.C. § 1229a(b)(5)(A), (C)); see also 8 U.S.C.
§ 1229(a)(1)(D) (NTA shall include charges against the alien and the statutory
provisions alleged to have been violated). Cherba’s contention that his NTA was
defective because it did not specify the date and time of his removal hearing is
foreclosed by Popa v. Holder, 571 F.3d 890, 896 (9th Cir. 2009) (NTA and hearing
notice combined satisfied requirements of 8 U.S.C. § 1229(a)(1)(G)(i)).
The agency did not abuse its discretion in denying Cherba’s motion to
reopen because he failed to establish that “exceptional circumstances” caused his
failure to appear. See 8 U.S.C. §§ 1229a (b)(5)(C)(i), (e)(1); see also
Valencia-Fragoso v. INS, 321 F.3d 1204, 1205-06 (9th Cir. 2003) (per curiam)
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(holding that confusion as to a hearing time does not amount to exceptional
circumstances). The BIA did not abuse its discretion in declining to remand so that
Cherba could submit additional evidence in support of his claim of exceptional
circumstances, where the additional evidence was not new or previously
unavailable and had not been submitted before the IJ. See 8 C.F.R. § 1003.2(c)(1).
To the extent Cherba seeks to raise an ineffective assistance of counsel claim
or raise new grounds for establishing exceptional circumstances, we lack
jurisdiction to consider these unexhausted claims. See Tijani v. Holder, 628 F.3d
1071, 1080 (9th Cir. 2010).
We do not consider the extra-record evidence submitted for the first time
with Cherba’s opening brief because the court’s review is limited to the
administrative record. See 8 U.S.C. § 1252(b)(4)(A).
In light of this disposition, we do not reach Cherba’s remaining contentions.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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