KARIM FAZUL, AKA Ahmedur Reza Chowdhury v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARIM FAZUL, AKA Ahmedur Reza
Chowdhury,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
Nos. 07-74965
Nos. 08-75083
Agency No. A070-172-690
MEMORANDUM*
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted July 21, 2015**
Before: CANBY, BEA, and MURGUIA, Circuit Judges.
In these consolidated petitions for review, Karim Fazul, a native and citizen
of Bangladesh, petitions for review of the Board of Immigration Appeals’ orders
dismissing his appeal from an immigration judge’s order denying his motion to
reopen his deportation proceedings conducted in absentia, and denying his second
FILED
AUG 04 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 3 --

motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400
F.3d 785, 791 (9th Cir. 2005). We deny in part and dismiss in part the petitions for
review.
The agency did not abuse its discretion in denying Fazul’s 2006 motion to
reopen and rescind his 1993 in absentia deportation order for failure to establish
lack of notice or exceptional circumstances excusing his failure to appear. See 8
U.S.C. § 1252b(c)(3) (1993). The record establishes that Fazul received notice of
the 1993 hearing, and he stated that he did not appear because he had provided a
false name to immigration officials and was scared. To the extent that Fazul now
contends he did not receive adequate notice in his native language of the
consequences of failing to appear, he failed to exhaust this contention in his 2006
motion. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (holding that 8
U.S.C. § 1252(d)(1) mandates exhaustion and bars this court from reaching the
merits of a legal claim not presented in administrative proceedings).
The agency did not abuse its discretion in denying Fazul’s 2008 motion to
reopen deportation proceedings, where Fazul admitted he received notice and there
was no statutory or regulatory requirement that notice be provided in his native
language. See 8 U.S.C. § 1252b(a)(3) (1993). As to his motion to reopen to apply
07-74965, 08-75083 2

-- 2 of 3 --

for relief, even if Fazul was not properly notified in his native language of the
specific consequences of failing to appear, the BIA did not abuse its discretion in
denying his motion as untimely where it was filed more than eleven years after the
September 30, 1996, deadline. See 8 C.F.R. § 1003.2(c)(2) (a motion to reopen
deportation or exclusion proceedings must be filed no later than 90 days after a final
order or on or before September 30, 1996, whichever is later); Matter of M-S-, 22 I.
& N. Dec. 349, 356-57 (BIA 1998) (a motion to reopen in absentia proceeding to
apply for new relief is subject to requirements of 8 C.F.R. § 1003.2(c)).
With regard to both motions, Fazul failed to exhaust his contention regarding
the right to counsel. See Barron, 358 F.3d at 678.
We do not agree that the denial of Fazul’s motions to reopen will lead to the
“unconscionable result” of the removal of an individual with an obviously valid
claim for relief. Cf. Singh v. INS, 295 F.3d 1037, 1040 (9th Cir. 2002).
PETITIONS FOR REVIEW DENIED in part; DISMISSED in part.
07-74965, 08-75083 3

-- 3 of 3 --