BACAB EK v. WHITAKER (2018)

MEMORANDUM **

Marcos Bacab Ek, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s order denying his motion to reopen removal proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and we review de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review.

The agency did not abuse its discretion in denying Bacab Ek’s motion to reopen for failure to establish exceptional circumstances, where he did not establish that he failed to appear at his hearing due to circumstances beyond his control. See 8 C.F.R. § 1003.23(b)(4)(ii); 8 U.S.C. § 1229a(e)(1) (defining exceptional circumstances as circumstances beyond the control of the alien); Valencia-Fragoso v. INS, 321 F.3d 1204, 1205-06 (9th Cir. 2003) (no exceptional circumstances where petitioner was late to her hearing due to confusion about the time). The record does not support Bacab Ek’s contention that the BIA insufficiently explained its decision. See Najmabadi v. Holder, 597 F.3d 983, 990-91 (9th Cir. 2010) (holding the BIA adequately considered evidence and sufficiently announced its decision).

Our jurisdiction to review BIA decisions denying sua sponte reopening is limited to reviewing the reasoning behind the decisions for legal or constitutional error. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). To the extent Bacab Ek contends the BIA’s sua sponte determination was premised on a legal error, this contention is not supported by the record. Id.

PETITION FOR REVIEW DENIED.