Fredy Aguilar-Grave v. Merrick B. Garland ( 2021 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-3180
___________________________
Fredy Jonas Aguilar-Grave, by next friend Alfredo Aguilar
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of the United States
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: June 10, 2021
Filed: June 15, 2021
[Unpublished]
____________
Before LOKEN, GRUENDER, and KELLY, Circuit Judges.
____________
PER CURIAM.
Guatemalan native and citizen Fredy Jonas Aguilar-Grave was ordered
removed in absentia when he failed to appear for his scheduled hearing before an
immigration judge. He filed a counseled motion with the immigration judge to
reopen his removal proceedings and rescind his in absentia removal order based on
“exceptional circumstances.” The immigration judge denied the motion, and the
Board of Immigration Appeals (BIA) dismissed his appeal. Guatemalan citizen and
native Alfredo Aguilar Garcia petitions for review of the BIA’s order on behalf of
Aguilar-Grave, his minor son. Having reviewed the record, we conclude that we may
not review Aguilar-Grave’s newly raised arguments regarding the notice he received
because he did not exhaust them in his proceedings before the agency. See 8 U.S.C.
§ 1252(d)(1); Chak Yiu Lui v. Holder, 600 F.3d 980, 984 (8th Cir. 2010); Frango v.
Gonzales, 437 F.3d 726, 728 (8th Cir. 2006). We further conclude that the agency
did not abuse its discretion in denying the motion to reopen because Aguilar-Grave
failed to demonstrate “exceptional circumstances” within the meaning of the
Immigration and Nationality Act (INA), based on his father’s failure to translate the
notice received and lack of understanding of the immigration process. See 8 U.S.C.
§ 1229a(b)(5)(C)(i), (e)(1); Kucana v. Holder, 558 U.S. 233, 243-53 (2010) (standard
of review). The INA does not require that notice be provided in a noncitizen’s native
language, see Lopez v. Garland, 990 F.3d 1000, 1003 (6th Cir. 2021), and the lack of
knowledge regarding the immigration process does not excuse Aguilar-Grave’s
absence, see Gitau v. Mukasey, 520 F.3d 906, 908-09 (8th Cir. 2008).
Accordingly, we deny the petition for review.
______________________________
-2-