United States v. 2021-04-21 | 20-70357 | ROEUTH THAN V. MERRICK GARLAND | nonprecedential |…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROEUTH THAN, No. 20-70357
Petitioner, Agency No. A027-344-769
v.
MEMORANDUM*
MERRICK B. GARLAND,
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 12, 2021
Seattle, Washington
Before: HAWKINS and CALLAHAN, Circuit Judges, and FITZWATER,** District
Judge.
Roeuth Than (“Than”), a native and citizen of Cambodia, petitions for review
of the Board of Immigration Appeals’ (“BIA’s”) dismissal of his appeal challenging
the immigration judge’s denial of Than’s motion to reopen proceedings and rescind
FILED
APR 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Sidney A. Fitzwater, United States District Judge for the
Northern District of Texas, sitting by designation.

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a removal order entered in absentia. We have jurisdiction under 8 U.S.C. § 1252 to
conduct judicial review in part, and we lack jurisdiction in part. We therefore deny
the petition for review in part and dismiss it in part for lack of jurisdiction.
Because the facts are known to the parties, we do not repeat them here except
as necessary to explain our decision.
We review the denial of a motion to reopen for abuse of discretion. See, e.g.,
Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014) (citing Bhasin v. Gonzales, 423 F.3d
977, 983 (9th Cir. 2005)). We must uphold the decision of the BIA unless it “acted
arbitrarily, irrationally, or contrary to law.” Lo v. Ashcroft, 341 F.3d 934, 937 (9th
Cir. 2003) (quoting Celis-Castellano v. Ashcroft, 298 F.3d 888, 891 (9th Cir. 2002)).
We review the BIA’s legal conclusions de novo and its factual findings for substantial
evidence. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (citing Bhasin, 423
F.3d at 983).
The BIA did not abuse its discretion in affirming the denial of the motion to
reopen proceedings on the basis that Than was given proper notice of the hearing at
his Kent, Washington address. Than was advised in the notice to appear that he must
immediately provide the immigration court notice when he changed addresses. He
provided the immigration court his Kent, Washington address, but not his Des
Moines, Washington address. Than did advise the U.S. Postal Service that he had
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moved from Kent to Des Moines, but he did not also notify the immigration court.
The BIA did not abuse its discretion in upholding the denial of the motion to reopen
on the basis that Than was given adequate notice of his hearing at his Kent,
Washington address, i.e., the most recent address provided to the immigration court.
See 8 U.S.C. § 1229a(b)(5)(A) (“[N]otice . . . shall be considered sufficient . . . if
provided at the most recent address provided under section 1229(a)(1)(F) of this
title.”).
Than also contends that he is not removable as charged. This claim, however,
was not exhausted. We therefore lack jurisdiction to consider it. Alvarado v. Holder,
759 F.3d 1121, 1127 (9th Cir. 2014).
We also lack jurisdiction to review the denial of sua sponte reopening. See
Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1115 (9th Cir. 2019) (citing Ekimian v.
INS, 303 F.3d 1153, 1154 (9th Cir. 2002)). This case does not fit into the narrow
exception that applies when denial of sua sponte reopening rests on “legal or
constitutional error.” Id. (internal quotation marks omitted) (quoting Bonilla v. Lynch,
840 F.3d 575, 588 (9th Cir. 2016)).
PETITION DENIED in part; DISMISSED in part.
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