NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT Julio Cesar Flores Santana, No. 21-1146 Petitioner, Agency No. A096-321-071 v. MEMORANDUM* Merrick B. Garland, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 9, 2023 Pasadena, California Before: GILMAN,** FORREST, and H.A. THOMAS, Circuit Judges. Dissent by Judge GILMAN. Julio Cesar Flores Santana seeks review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal from the Immigration Judge’s (IJ) denial of his motion to reconsider. We have jurisdiction in part under 8 U.S.C. § 1252(a). We deny the petition in part and dismiss in part. 1. Motion to Reconsider. Flores Santana argues that the agency erred in * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. denying his motion to reconsider because the Department of Homeland Security (DHS) did not provide him with a biometric notice and instructions and the IJ did not state on the record that Flores Santana was provided with such instructions. The IJ and the BIA found that Flores Santana was given the biometrics instructions sheet and informed of the consequences of failing to comply with the biometrics filing deadline. While Flores Santana disputes this finding, he has not met his burden of showing “clear evidence to the contrary” of the agency’s factual finding, which is necessary to overcome the presumption that the agency “act[ed] properly and according to law.” 1 Kohli v. Gonzales, 473 F.3d 1061, 1068 (9th Cir. 2007) (quotation marks and citation omitted). The regulation requiring that the IJ “specify for the record when the respondent receives the biometrics notice and instructions” does not reverse this presumption of regularity. See 8 C.F.R. § 1003.47(d). “The presumption of regularity has been applied far and wide to many functions performed by government officials.” Angov v. Lynch, 788 F.3d 893, 905 (9th Cir. 2015) (collecting cases). It works here just as in any other context: a petitioner can show that the agency failed to comply with its own regulation by “com[ing] forward with evidence indicating” non-compliance. See Kohli, 473 F.3d at 1068. 1 The dissent argues that we rely on the “extraordinary conclusion that an appellate body like the BIA may apply th[is] presumption without reviewing the underlying record created by the IJ.” But there is no evidence that the BIA failed to review the underlying record, which indicates that the agency complied with its duties. 2 The BIA informed Flores Santana that he could address his need for a transcript of his hearing in his brief to the BIA and that he could “contact the Immigration Court . . . to listen to the audio recordings of the hearing.” Flores Santana’s counsel conceded …
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