Singh v. Immigration & Naturalization Service

MEMORANDUM **

Joginder Singh, a native and citizen of India, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal of an immigration judge’s denial of his motion to reopen proceedings after he was ordered deported in absentia. Because the transitional rules apply, see Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), we have jurisdiction under 8 U.S.C. § 1105a(a). We review the denial of a motion to reopen for an abuse of discretion, Dobrota v. INS, 311 F.3d 1206, 1211 (9th Cir.2002), and we review due process claims de novo, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We deny the petition for review.

Singh contends that his right to due process was violated when the immigration judge (“IJ”) gave him notice of his rescheduled deportation hearing in English rather than Punjabi. We disagree. After determining that Singh did not speak English, the IJ scheduled a new deportation hearing with a Punjabi interpreter. The IJ gave Singh written notice of the new hearing that complied with all of the statutory requirements. See 8 U.S.C. § 1252b(a)(2)(B) (1994) (notice of a change or postponement of a deportation hearing must be written and contain (1) the new time and place of the hearing, and (2) the consequences of failing to appear). Accordingly, we reject Singh’s contention that the written notice he received violated his right to due process.

Similarly, Singh’s contention that the IJ violated his right to due process by failing to explain the written notice of the new hearing lacks merit. Indeed, the record shows that the IJ attempted to explain the notice to Singh to the extent possible given the language barrier.1

Moreover, because Singh did not file his motion to reopen within 180 days after the date of the deportation order, he was not entitled to relief on the basis of exceptional circumstances. See 8 U.S.C. § 1252b(c)(3)(A) (1994).

*358Finally, we reject Singh’s contentions that the BIA did not apply the correct law, did not consider all of his arguments, and failed to give adequate reasons to support its decision. See Alaelua v. INS, 45 F.3d 1379, 1382 (9th Cir.1995) (BIA can adopt IJ’s decision if it is clear that the BIA gave individualized consideration to the case).

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

. Singh’s reliance on Matter of Hernandez, Interim Decision 3265 (BIA 1996), is misplaced. Hernandez held that 8 C.F.R. § 242.1(c) (1995) requires an explanation of the content of an Order to Show Cause ("OSC”) when an immigration officer personally serves the OSC on an alien. Here, the IJ did not serve an OSC on Singh but rather served only a hearing notice. Singh admitted in the affidavit filed with his motion to reopen that, when the asylum officer served the OSC, Singh’s interpreter explained the future proceedings, including Singh’s obligation to appear in court.