MARCOS BACAB EK V. MATTHEW WHITAKER, No. 17-70413 (9th Cir. 2018)

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FILED NOT FOR PUBLICATION NOV 30 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT MARCOS BACAB EK, No. Petitioner, U.S. COURT OF APPEALS 17-70413 Agency No. A206-149-269 v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 27, 2018** Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges. 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 * 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). 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, 99091 (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. 2 17-70413

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