Hector Cruz-Rodas v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JUL 15 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HECTOR ANIBAL CRUZ-RODAS, No. 11-73234

Petitioner, Agency No. A076-819-849

v.
MEMORANDUM*
ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted July 11, 2013**
Pasadena, California

Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.

The immigration judge (“IJ”) denied Petitioner’s motion to reopen removal

proceedings filed more than a decade after he was ordered removed in absentia on

July 1, 1998. The Board of Immigration Appeals (“BIA”) dismissed Petitioner’s

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
appeal and denied his motion to remand. We now deny Petitioner’s petition

for review.

The record supports the agency’s finding that Petitioner was personally

served with the document that charged him as removable, and that notice of the

hearing was mailed to Petitioner’s counsel of record at the time, which constituted

service on Petitioner, see 8 U.S.C. § 1229a(b)(5)(A); 8 C.F.R. § 1292.5(a). The IJ

also found that Petitioner’s counsel attended the hearing (demonstrating notice of

that hearing), a finding that we are not “compelled” to overturn, see 8 U.S.C.

§ 1252(b)(4)(B). In addition, Petitioner concedes that he was in fact ordered

removed.

Because Petitioner failed to appear after receiving notice, he was properly

ordered removed, as he does not dispute that he was removable as charged. See 8

U.S.C. § 1229a(b)(5)(A); Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir. 2000) (per

curiam). To obtain reopening, therefore, Petitioner was required to demonstrate

that his nonappearance resulted from exceptional circumstances beyond his

control, 8 U.S.C. § 1229a(b)(5)(C)(i), which he has not done. In addition, his

motion to reopen was untimely by more than a decade. Id. Petitioner makes no

claim of ineffective assistance (in connection with his motion to reopen) that could

potentially entitle him to equitable tolling of the applicable 180-day deadline. Any

2
reliance on Lo v. Ashcroft, 341 F.3d 934 (9th Cir. 2003), is misplaced, as the

petitioners there were affirmatively misled by their counsel and filed a timely

motion to reopen. See id. at 935–36. The BIA therefore correctly approved the

IJ’s decision denying Petitioner’s motion to reopen.

In light of the foregoing discussion, the BIA also permissibly denied

Petitioner’s motion to remand for production of a transcript of the July 1, 1998,

proceeding, as Petitioner is not prejudiced by the transcript’s absence.

PETITION FOR REVIEW DENIED.