NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 8 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIO ORTIZ MENDOZA, No. 20-70710
Petitioner, Agency No. A028-534-455
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 6, 2022**
Seattle, Washington
Before: HAWKINS and BUMATAY, Circuit Judges, and SEEBORG,*** District
Judge.
Julio Ortiz Mendoza petitions for review from a Board of Immigration
Appeals’ (“BIA”) decision denying his motion to reopen. We review the denial 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).
***
The Honorable Richard Seeborg, Chief United States District Judge
for the Northern District of California, sitting by designation.
a motion to reopen for an abuse of discretion. Najmabadi v. Holder, 597 F.3d 983,
986 (9th Cir. 2010). We have jurisdiction under 8 U.S.C. § 1252 and deny the
petition.
1. The BIA did not abuse its discretion in denying Ortiz Mendoza’s motion
to reopen for failure to establish exceptional circumstances. Ortiz Mendoza failed
to appear for an April 2000 hearing, and an immigration judge ordered him removed
in absentia. It was not until February 2018 when Ortiz Mendoza moved to reopen
and rescind the in absentia removal order. Generally, a motion to reopen must be
filed “within 180 days after the date of the order of removal if the alien demonstrates
that the failure to appear was because of exceptional circumstances.” 8 U.S.C. §
1229a(b)(5)(C)(i); see also Cui v. Garland, 13 F.4th 991, 996 (9th Cir. 2021).1
Ortiz Mendoza argues that the BIA abused its discretion by failing to find
exceptional circumstances based on the medical illnesses of his wife and children.2
1
Ortiz Mendoza’s removal proceedings commenced prior to the effective date
of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), so we analyze the “exceptional circumstances” question under the pre-
IIRIRA rules rather than the current ones. See Chete Juarez v. Ashcroft, 376 F.3d
944, 947 (9th Cir. 2004).
2
We reject the government’s argument that Ortiz Mendoza waived his
challenge to the “exceptional circumstances” issue by referring to the current
standard set out in 8 U.S.C. § 1229a(e)(1), rather than the pre-IIRIRA standard.
Waiver applies when a petitioner makes no “substantive argument” concerning an
issue. See Cui, 13 F.4th at 999 n.6. Here, Ortiz Mendoza raised a substantive
argument by attacking the BIA’s exceptional circumstances decision, albeit under
the current version of the statute.
2
We disagree. The BIA specifically addressed Ortiz Mendoza’s medical evidence.
While the BIA acknowledged that Ortiz Mendoza’s wife and children suffered from
medical illnesses at the time of his removal hearing, it concluded that none of the
evidence demonstrated that Ortiz Mendoza’s absence from immigration court
proceedings was caused by the illnesses. Accepting Ortiz Mendoza’s assertions as
true, see Bhasin v. Gonzales, 423 F.3d 977, 986–87 (9th Cir. 2005), they do not
provide an adequate explanation for why he missed his removal hearing. For
example, Ortiz Mendoza states that his son suffered from a debilitating seizure
disorder pre-dating his removal proceeding. While his son’s illness may require
special assistance and support, Ortiz Mendoza does not show that he was unable to
attend the hearing because of his son’s condition. Ortiz Mendoza’s evidence
regarding other family members is similarly unavailing since he makes no
connection between their conditions and his absence at the immigration court
hearing.
Indeed, the evidence in the record undercuts any claim that his family’s
medical conditions caused his absence. The record shows that Ortiz Mendoza was
working at different farms in California and did not learn about the in absentia order
until he returned from California. Based on this record, it was not an abuse of
discretion to reject Ortiz Mendoza’s claim that his family’s medical conditions were
an “exceptional circumstance” that caused his absence.
3
2. Because the BIA did not abuse its discretion in denying the motion to
reopen on exceptional circumstances, we do not address Ortiz Mendoza’s other
contentions on appeal.
DENIED.
4