Unreported / Non-Citable
Background
Maritsa Guada Godoy Soto, a native and citizen of El Salvador, petitioned for review of the Board of Immigration Appeals' (BIA) decision dismissing her appeal of an Immigration Judge's (IJ) order denying her motion to reopen deportation proceedings and rescind an in absentia deportation order. The Ninth Circuit had jurisdiction under 8 U.S.C. § 1252. The panel, consisting of Judges Gould, N.R. Smith, and Johnstone, determined the case suitable for decision without oral argument. Because the BIA conducted its own review rather than adopting the IJ's decision, the court's review was limited to the BIA's decision. The court reviewed the denial of the motion to reopen for abuse of discretion and legal questions, including due process claims and sufficiency of notice, de novo.
The petitioner's motion to reopen was based on alleged exceptional circumstances and a due process violation stemming from the actions of a "notario" (non-attorney) who allegedly failed to inform her of her hearing. The BIA found that the petitioner had actual notice of the hearing, which constituted sufficient notice, and that she waived any challenge to this finding by not raising it on appeal. The BIA also found that the petitioner failed to establish exceptional circumstances or a due process violation, and declined to exercise its sua sponte authority to reopen proceedings. The petitioner also sought review of the agency's failure to adjudicate her underlying application for relief from deportation.
The Court’s Holding
The Ninth Circuit denied the petition in part, holding that the agency did not abuse its discretion in denying the motion to reopen. The petitioner forfeited any challenge to the BIA's finding that she waived objections to the IJ's determination of actual notice by failing to raise the issue in her opening brief. Even on the merits, the court found that vague allegations that a notario did not tell her about the hearing were insufficient to establish exceptional circumstances where actual notice was received, citing Singh-Bhathal v. INS. Reviewing de novo, the court held that the petitioner failed to make out a due process violation because she presented no evidence that the notario interfered with the actual notice she received, and she did not comply with the procedural requirements of Matter of Lozada, which are especially important absent a clear and obvious case of ineffective assistance.
The court dismissed the petition in part for lack of jurisdiction regarding the denial of sua sponte reopening. Under Lona v. Barr, the court only has jurisdiction to review such denials if the agency erroneously believed it lacked legal authority to reopen or that doing so would be futile. Here, the BIA denied sua sponte reopening based on its discretionary finding that the petitioner did not demonstrate exceptional circumstances, not based on a legal error regarding its authority. Finally, the court held the agency did not err by declining to adjudicate the underlying application for relief from deportation because the discretionary denial of the motion to reopen obviated the need to consider eligibility for underlying relief, per Franco-Rosendo v. Gonzales and INS v. Bagamasbad. The petitioner's motion to stay removal pending appeal was also denied.
Key Takeaways
- A petitioner who receives actual notice of a hearing cannot establish exceptional circumstances for an in absentia deportation order based solely on vague allegations that a non-attorney (notario) failed to inform them of the hearing.
- Due process claims based on ineffective assistance by a non-attorney require compliance with Matter of Lozada procedural requirements, especially when the record does not show a clear and obvious case of ineffective assistance.
- Challenges to a BIA finding of waiver are forfeited if not raised in the petitioner's opening brief on appeal.
- The Ninth Circuit lacks jurisdiction to review the BIA's discretionary denial of sua sponte reopening unless the BIA incorrectly believed it lacked the legal authority to act.
- If the BIA properly denies a motion to reopen as a discretionary matter, it need not adjudicate the merits of the underlying application for relief from removal.
Why It Matters
This memorandum disposition reinforces the high bar for reopening in absentia deportation orders based on exceptional circumstances when actual notice is established. It clarifies that reliance on a notario does not excuse a failure to attend a hearing of which the alien had actual notice, and it underscores the strict enforcement of Lozada requirements for ineffective assistance claims involving non-attorneys. The decision also reaffirms the jurisdictional limitation on reviewing sua sponte reopening denials, limiting appellate review to cases where the BIA misapprehends its legal authority rather than merely exercising its discretion unfavorably.