Ofelia Rosas-Hernandez v. Matthew Whitaker ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 30 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OFELIA ROSAS-HERNANDEZ, AKA No. 16-73111
Maritza Lopez Rodriguez, AKA Maritza
Pacheco, AKA Maritza Rodriguez, AKA Agency No. A071-908-353
Maritza Rodriguez Lopez, AKA Ofelia
Rosas Hernandez,
MEMORANDUM*
Petitioner,
v.
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 27, 2018**
Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.
Ofelia Rosas-Hernandez, a native and citizen of Honduras, petitions pro se
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her
*
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).
appeal from an immigration judge’s (“IJ”) order denying her motion to reopen
deportation proceedings conducted in absentia. Our jurisdiction is governed by
8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
reopen, and we review de novo constitutional claims. 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 or violate due process in denying
Rosas-Hernandez’s motion to reopen to rescind her in absentia deportation order
where she failed to establish reasonable cause for her absence at her deportation
hearing. See 8 U.S.C. § 1252(b) (1990) (permitting in absentia proceedings when
an “alien has been given a reasonable opportunity to be present at a proceeding
under this section, and without reasonable cause fails or refuses to attend or remain
in attendance at such proceeding”). The record shows that Rosas-Hernandez was
personally served with a bond out notice on September 27, 1991, which listed an
inaccurate and incomplete mailing address; informed her that her hearing notice
would be sent to the address listed; and included notice of her obligation to inform
the government and the immigration court of any address correction or address
change. See Hernandez-Vivas v. INS, 23 F.3d 1557, 1559 (9th Cir. 1994) (“When
the basis of an alien’s motion to reopen is that the IJ held a deportation hearing in
absentia, the alien must establish ‘reasonable cause’ for his absence.”); Flores-
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Chavez v. Ashcroft, 362 F.3d 1150, 1155 (9th Cir. 2004) (“[D]ue process requires
that aliens receive notice of their deportation hearings that is reasonably calculated
to reach them[.]”). We also reject as unsupported Rosas-Hernandez’s contention
that the agency applied an incorrect legal standard in denying her motion.
The agency did not abuse its discretion in denying Rosas-Hernandez’s
motion to reopen to apply for relief, where she failed to file all supporting
documents and waiver forms with her adjustment of status application; she failed
to file an application for VAWA suspension of deportation, with supporting
documents; and she failed to file an application for asylum, withholding of
removal, and protection under the Convention Against Torture, with supporting
documents. See 8 C.F.R. § 1003.23(b)(3) (“Any motion to reopen for the purpose
of acting on an application for relief must be accompanied by the appropriate
application for relief and all supporting documents.”).
To the extent Rosas-Hernandez challenges the agency’s decision not to
reopen proceedings sua sponte, we lack jurisdiction to review the agency’s
discretionary determination. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir.
2016).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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