Leslie Ortiz v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 2 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LESLIE K. ORTIZ, No. 17-71318
Petitioner, Agency No. A072-909-876
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 12, 2020**
Pasadena, California
Before: CALLAHAN, BUMATAY, and VANDYKE, Circuit Judges.
Leslie Ortiz, a native of Guatemala, petitions for review of the Board of
Immigration Appeals’ (BIA) dismissal of her appeal of the immigration judge’s
(IJ) denial of her motion to reopen her removal proceedings. We have jurisdiction
under 8 U.S.C. § 1252, and we deny the petition.
*
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).
Ortiz was sixteen years old when she failed to appear at her removal hearing.
According to her attorney and grandmother, Ortiz had run away with a man twenty
years her senior and had not been in contact with her family since her initial
hearing. After Ortiz was removed in abstentia, she filed a motion to reopen,
explaining that she missed her hearing because the bus she had taken from another
state arrived several hours late. The IJ denied the motion to reopen. Ortiz moved
for reconsideration, urging the agency to consider her age and state of mind in
determining whether exceptional circumstances excused her failure to appear. On
reconsideration, the IJ again denied reopening, noting that she had not proffered
any medical evidence regarding her purported mental or emotional issues. The
BIA affirmed the IJ’s denial of reopening and dismissed Ortiz’s appeal.
Ortiz raises two errors with the agency decision. First, Ortiz argues that, in
assessing whether an alien minor’s failure to appear is due to exceptional
circumstances, the agency must give “special consideration” to the “minor’s age,
psychological and emotional state of mind, maturity, and lack of sophistication and
knowledge.” However, Ortiz does not provide any supporting law for her
proposition, nor has our circuit provided for a different or special standard for
minors in this context. Rather, to rescind her in absentia removal order, Ortiz must
demonstrate that her failure to appear was due to “exceptional circumstances (such
as battery or extreme cruelty to the alien or any child or parent of the alien, serious
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illness of the alien, or serious illness or death of the spouse, child, or parent of the
alien, but not including less compelling circumstances) beyond the control of the
alien.” See 8 U.S.C. §§ 1229a(b)(5)(C)(i), 1229a(e)(1). In determining
“exceptional circumstances,” the agency must consider the totality of the
circumstances. See Chete Juarez v. Ashcroft, 376 F.3d 944, 948 (9th Cir. 2004)
(requiring consideration of “all exceptional—i.e., compelling—circumstances
relevant to a petitioner’s motion to reopen”). Here, the agency considered the
relevant facts and evidence raised by Ortiz pertaining to her age, maturity, and
alleged mental and emotional issues. But it concluded that they did not
demonstrate exceptional circumstances, given the conflicting evidence in the
record and lack of corroboration. Accordingly, the agency did not err in its
assessment of whether exceptional circumstances caused Ortiz’s failure to appear.
Ortiz also argues that the agency erred by requiring that she submit medical
evidence to support her claim that exceptional circumstances caused her to miss
her hearing. In general, “[c]orroboration of a credible declaration by an alien
moving to reopen is not required.” Celis–Castellano v. Ashcroft, 298 F.3d 888, 892
(9th Cir. 2002). However, where an agency denies reopening because the
petitioner failed to carry his burden—due to lack of corroborative evidence for his
exceptional circumstances claim—but does not impose a new evidentiary
requirement, it does not abuse its discretion. See id.
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 The agency concluded that, without additional evidence supporting her
claimed undue influence or other mental or emotional issues, Ortiz had not met her
burden to show that exceptional circumstances beyond her control prevented her
appearance. Because the agency did not act “arbitrarily, irrationally, or contrary to
law” in reaching this conclusion, it did not abuse its discretion in denying Ortiz’s
motion to reopen. See Singh v. INS, 213 F.3d 1050, 1053 (9th Cir. 2000) (“Unless
the [Board] acted arbitrarily, irrationally, or contrary to law, we should not disturb
[its] ruling.” (citation and internal quotation marks omitted)).
The petition for review is DENIED.
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