Ana Ayala-Cantillo v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANA AYALA-CANTILLO, No. 18-72228
Petitioner, Agency No. A071-918-407
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Ana Ayala-Cantillo, a native and citizen of Ecuador, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen
and terminate deportation proceedings. We have jurisdiction under 8 U.S.C.
§ 1252. We review for abuse of discretion the denial of a motion to reopen and
review de novo questions of law. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2016). We deny the petition for review.
The BIA did not abuse its discretion in denying Ayala-Cantillo’s motion to
reopen on the ground that notice was proper, where she was personally served with
her order to show cause (“OSC”) which contained advisals warning her of her
responsibility to provide an address and the consequences of failing to appear for
her scheduled hearing, and she failed to provide an address as required. See
8 U.S.C. § 1252b(a)(1)(F) (1993). Under those circumstances, an in absentia order
of deportation may be issued without attempting to serve written notice on the
alien. See 8 U.S.C. § 1252b(c)(2) (1993); see also Matter of Villalba-Sinaloa,
21 I. & N. Dec. 842, 844-45 (BIA 1997) (generally, the notice provided to an alien
in the OSC need not be an exact recitation of the language set forth in the statute,
as long as it is reasonable under all the circumstances).
Ayala-Cantillo’s contention that the agency lacked jurisdiction under
Pereira v. Sessions, 138 S. Ct. 2105 (2018), also fails. See 8 U.S.C. § 1252b(a)(2)
(1993) (permitting the time and place at which proceedings will be held to be
included in a subsequent notice); see also Aguilar Fermin v. Barr, 958 F.3d 887,
895 (9th Cir. 2020) (omission of certain information from notice to appear can be
cured for jurisdictional purposes by later hearing notice).
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As stated in the court’s November 8, 2018, order, the temporary stay of
removal remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED.
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