Haisheng Wu v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 4 2024

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS HAISHENG WU, No. 20-72719

Petitioner, Agency No. A098-432-399 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals Submitted December 2, 2024** San Francisco, California

Before: COLLINS, VANDYKE, and MENDOZA, Circuit Judges.

Petitioner Haisheng Wu, a citizen of the People’s Republic of China, petitions for review of a decision by the Board of Immigration Appeals (“BIA”) dismissing her appeal of an Immigration Judge’s (“IJ”) denial of her third motion to reopen her removal proceedings, in which she sought to rescind her 2005 in absentia removal order. We have jurisdiction under § 242 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252. We review the denial of a motion to * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. reopen for abuse of discretion. Fonseca-Fonseca v. Garland, 76 F.4th 1176, 1180 (9th Cir. 2023). Under this standard, “[w]e must uphold the [BIA’s] ruling unless it acted arbitrarily, irrationally, or contrary to law.” Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004) (simplified). We deny the petition.

1. Before the IJ and the BIA, Wu contended that, because her original November 11, 2004 Notice to Appear (“NTA”) for a removal hearing lacked a date, time, and place for her hearing, the immigration court violated 8 C.F.R. § 1003.14(a) and therefore lacked jurisdiction over her removal proceedings. This contention fails, however, because “§ 1003.14(a) is a nonjurisdictional claim- processing rule,” and “defects in an NTA . . . have no bearing on an immigration court’s adjudicatory authority.” United States v. Bastide-Hernandez, 39 F.4th 1187, 1193 (9th Cir. 2022) (en banc). In any event, the immigration court complied with § 1003.14 by later supplementing the November 11, 2004 NTA with a notice of hearing for Wu’s initial December 2, 2024 master calendar hearing, at which she appeared.1 Id.

2. To the extent that Wu contends that a valid NTA is a statutory requirement for a valid in absentia removal order, that claim was not exhausted before the agency. See Abebe v. Mukasey, 554 F.3d 1203, 1207–08 (9th Cir. 2009) (en banc). In any event, that contention was recently squarely rejected by the Supreme Court. Campos-Chaves v. Garland, 602 U.S. 447, 144 S. Ct. 1637, 1643 (2024).

PETITION DENIED.