Mohammed Zaber v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 26 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MOHAMMED ZABER, AKA Mohammed No. 18-72054 Faisal Khosru, 19-71326 Petitioner, Agency No. A075-697-291 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 6, 2022** Portland, Oregon Before: WATFORD, R. NELSON, and LEE, Circuit Judges. Mohammed Zaber (also known as Mohammed Faisal Khosru), a native and citizen of Bangladesh, seeks review of the Board of Immigration Appeals’ (BIA) decisions dismissing his appeal of the denial of his motion to reopen, dismissing his * 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). second motion to reopen, and denying his motion to reconsider. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petitions. We review the BIA’s dismissal of a motion to reopen, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), and denial of a motion to reconsider for abuse of discretion, Tzompantzi-Salazar v. Garland, 32 F.4th 696, 702 (9th Cir. 2022). We defer to the BIA’s decision “unless it acted arbitrarily, irrationally, or contrary to law.” Id. 1. The BIA reasonably dismissed Zaber’s first motion to reopen as untimely. To rescind an in absentia removal order, Zaber was required to file a motion either (i) within 180 days after the issuance of the removal order if his failure to appear was due to “exceptional circumstances”; or (ii) “at any time” if he “did not receive notice.” 8 U.S.C. § 1229a(b)(5)(C)(i)–(ii). Zaber has not met either condition: (1) he filed his first motion to reopen over 180 days after the Immigration Judge (IJ) issued his removal order and did not demonstrate the due diligence required to excuse the delay, and (2) he was personally served with a Notice to Appear (NTA) in 2000. Zaber contests personal service. But we apply “a presumption of regularity to the service of an NTA.” B.R. v. Garland, 26 F.4th 827, 836 (9th Cir. 2022). Because Zaber signed the NTA’s certification of service, we “presume the officer then provided him with a copy.” Id. He “supplied no evidence to rebut this presumption beyond his own declaration,” and “a declaration simply refuting 2 personal service is insufficient to overcome the presumption.” Id. The BIA also reasonably denied his request to equitably toll the filing deadline because, assuming arguendo that notary fraud provided an exceptional circumstance, he did not show due diligence. Zaber does not contest that the Department of Homeland Security served him with an NTA in 2013 that would have put him on notice of any notary fraud. See Avagyan v. Holder, 646 F.3d 672, 680 (9th Cir. 2011). And he did not explain in his first motion to reopen if and how he …

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