NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FAYCAL ATORKY, No. 18-71203 Petitioner, Agency No. A205-272-480 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 14, 2021** Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges. Faycal Atorky, a native and citizen of Morocco, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his motion to reopen and rescind his in absentia removal order. Our jurisdiction is governed by 8 U.S.C. § 1252. We * 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). review for abuse of discretion the denial of a motion to reopen. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We deny in part and dismiss in part the petition for review. The BIA did not abuse its discretion in denying Atorky’s motion to reopen removal proceedings conducted in absentia, where Atorky failed to demonstrate exceptional circumstances to excuse his absence from the hearing. See 8 U.S.C. § 1229a(b)(5)(C); Arredondo v. Lynch, 824 F.3d 801, 805-06 (9th Cir. 2016) (setting forth the standards governing when a motion to reopen may rescind an in absentia removal order and discussing exceptional circumstances); see also Celis- Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir. 2002) (concluding BIA did not abuse its discretion in determining that petitioner’s evidence, consisting of a declaration and a medical form, failed to establish that his asthma attack amounted to “exceptional circumstances”). We reject as unsupported by the record Atorky’s contentions that the BIA applied an incorrect standard or deprived him of due process by failing to consider the totality of the circumstances. We lack jurisdiction to review the BIA’s denial of sua sponte reopening, where Atorky does not raise a claim of legal or constitutional error underlying the 2 18-71203 BIA’s decision. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). The stay of removal remains in place until issuance of the mandate. PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 18-71203 18-71203 Court of Appeals for the Ninth Circuit ca9 9th Cir. Faycal Atorky v. Merrick Garland 17 December 2021 Agency Unpublished dc9c2938166a62bac428fc8789cca0007e88066f
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals