Opinion
No. 03-71444.United States Court of Appeals, Ninth Circuit.June 22, 2005
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A70-638-137.
Before: KLEINFELD, TASHIMA, and THOMAS, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Luzviminida Metzala, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals' affirmance of an Immigration Judge's ("IJ") decision denying her motion to reopen proceedings in which she was removed in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion. de Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir.2004). We deny the petition for review.
The IJ did not abuse his discretion in denying Metzala's motion to reopen because she failed to establish "exceptional circumstances." See 8 U.S.C. § 1229a (b)(5)(C)(i); 8 C.F.R. § 1003.23(b)(3). Metzala's contention that she and her attorney both misread the date of the hearing is unavailing. SeeValencia-Fragoso v. INS, 321 F.3d 1204, 1205-06 (9th Cir.2003) (per curiam) (holding that confusion as to a hearing time does not amount to exceptional circumstances); Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir.2000) (per curiam) (holding that "each party is deemed bound by the acts of his lawyer-agent").
Metzala's contention that the in absentia order violates due process lacks merit. SeeValencia-Fragoso, 321 F.3d at 1206 (noting that "[t]he IJ did not deny Petitioners due process by proceeding with the hearing in Petitioners' absence.") (internal citation omitted).
Metzala's contention that the order leads to an "unconscionable result" likewise lacks merit because she has not shown that she would not have been ordered removed had she attended the hearing. Seeid. at 1205-06.
PETITION FOR REVIEW DENIED.