744 Fed.Appx. 400 (9th Cir. 2018), 17-70225, Guifarro-Aceituno v. Whitaker

Docket Nº:17-70225
Citation:744 Fed.Appx. 400
Party Name:Damaris Gabriela GUIFARRO-ACEITUNO, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent.
Attorney:Damaris Gabriela Guifarro-Aceituno, Pro Se Todd J. Cochran, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent
Judge Panel:Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.
Case Date:November 30, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 400

744 Fed.Appx. 400 (9th Cir. 2018)

Damaris Gabriela GUIFARRO-ACEITUNO, Petitioner,

v.

Matthew G. WHITAKER, Acting Attorney General, Respondent.

No. 17-70225

United States Court of Appeals, Ninth Circuit

November 30, 2018

Submitted November 27, 2018 [*]

Editorial Note:

Governing the citation to unpublished opinions please refer to federal rules of appellate procedure rule 32.1. See also U.S.Ct. of App. 9th Cir. Rule 36-3.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX5-687

Damaris Gabriela Guifarro-Aceituno, Pro Se

Todd J. Cochran, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent

Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.

Page 401

MEMORANDUM[**]

Damaris Gabriela Guifarro-Aceituno, a native and citizen of Honduras, petitions pro se 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. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen and review de novo constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.

The agency did not abuse its discretion or violate due process in denying Guifarro-Aceituno’s motion to reopen based on lack of notice, where Guifarro-Aceituno was personally served a Notice to Appear that informed her of her obligation to provide the court with a current address, and she failed to do so. See 8 C.F.R. § 1003.23(b)(4)(ii); 8 U.S.C. § 1229a(b)(5)(B) (no notice of hearing required if the alien has failed to provide a current address); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and substantial prejudice to prevail on a due process claim).

The agency also did not abuse its discretion or violate due process in denying reopening to apply for asylum, where...

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