NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DAN HUYNH, No. 17-73326 Petitioner, Agency No. A073-278-488 v. WILLIAM P. BARR, Attorney General MEMORANDUM* Respondent, Appeal from the Board of Immigration Appeals Argued and Submitted May 22, 2020 San Francisco, California Before: BERZON and IKUTA, Circuit Judges, and LEMELLE,** Senior District Judge. Petitioner Dan Huynh appeals the Board of Immigration Appeal’s (BIA) decision affirming the denial of petitioner’s motion to reopen deportation proceedings by the Immigration Court (IJ). * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Ivan L.R. Lemelle, Senior United States District Judge for the Eastern District of Louisiana, sitting by designation. Petitioner argues that notice to his counsel was insufficient, as petitioner could not be timely found due to his own drug addiction and homelessness issues. While this court has empathy for anyone with those serious issues, the current law requires holding that legal notice through service upon his counsel of record is sufficient. Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir. 2000). Next, petitioner claims the refusal to reopen his removal proceeding sua sponte was based on legal or constitutional error because the BIA and the IJ (1) admitted a contested police report into evidence without authentication of the police report; (2) deprived petitioner of a fair hearing under the Fifth Amendment; and (3) failed to order a hearing under 8 U.S.C. §1229a(b)(4)(B) to determine the reliability of the contested police report. “[T]his court has jurisdiction to review Board decisions denying sua sponte reopening for the limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). In declining to reopen sua sponte, the IJ reasoned that petitioner was ineligible to adjust his status under 8 U.S.C. § 1159(c), which provides that the Attorney General may generally adjust an alien’s status, unless the alien is inadmissible under 8 U.S.C. § 1182(a)(2)(C). The IJ concluded that the Attorney General had “reason to believe” that petitioner was a drug trafficker and thereby inadmissible 2 under that provision. This conclusion was, it appears, partially based on an August 2, 2011 police incident report, which was corroborated by petitioner’s criminal history report. Such corroboration is enough to authenticate the police report. The BIA may admit evidence under either the requirements of the INA statute or through “any procedure that comports with common law rules of evidence.” Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1196 (9th Cir. 2006) (quoting Iran v. I.N.S., 656 F.2d 469, 472 n. 8 (9th Cir.1981) (as amended)). Admissibility is generally warranted so long as there is “some sort of proof that the document is what it purports to be.” Id. Petitioner’s criminal history report confirms that petitioner was arrested on August 2, 2011 for “poss/purchase cocaine base f/sale” and “possess unlaw paraphernalia.” It was ...
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