NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 14 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FALGUNIBEN PATEL, No. 16-72336
Petitioner, Agency No. A098-344-914
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 12, 2018**
Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.
Falguniben Patel, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’ order dismissing her appeal from an immigration
judge’s order denying her motion to reopen removal proceedings conducted in
absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of
*
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).
discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785,
791 (9th Cir. 2005). We deny the petition for review.
The agency did not abuse its discretion in denying Patel’s motion to reopen
as untimely, where she did not establish a lack of notice. See 8 C.F.R. §
1003.23(b)(4) (motions to reopen in absentia proceedings may be filed at any time
if alien did not receive proper notice). Patel was personally served with the notice
to appear and she concedes that the hearing notice was mailed to her attorney of
record. See id. at § 1003.26(c)(2) (notice sufficient for in absentia purposes when
“written notice of the time and place of proceedings and written notice of the
consequences of failure to appear were provided to the alien or the alien’s counsel
of record”); Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir. 2000) (hearing notice is
properly served if it is served on alien’s counsel of record). Patel’s contentions that
she lacked notice of the address obligations and consequences of failing to appear
are misplaced because she received written notice in the notice to appear and the
agency did not find that she had failed to provide an address. See 8 C.F.R. §
1003.26(c)(2).
The agency also did not abuse its discretion in declining to equitably toll the
filing deadline, where Patel’s motion provided insufficient evidence to show she
acted with due diligence after she learned of the in absentia order in 2013. See
Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (requiring petitioner to
2 16-72336
investigate suspected fraud or error, and ending tolling period when petitioner
definitively learns of the harm from counsel’s deficiency).
Because these determinations are dispositive, the agency did not need to
reach petitioner’s contentions regarding exceptional circumstances or her prior
attorney’s performance. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir.
2004).
PETITION FOR REVIEW DENIED.
3 16-72336