NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAN HUYNH

,

Petitioner

,

v.

WILL IAM P. BARR

, Attorney General

Respondent

, No. 17

- 73326

Agency No. A073

- 278

- 488

MEMORANDUM *

Appeal from the Board of Immigration Appeals

Argued and Submitted May 22, 2020

San Francisco, California

Before: BERZON and IKUTA, Circuit Judges, and LEMELLE, * * Senior District

Judge.

Petitioner Dan Huynh appeals the Board of Immigration Appeal’s (BIA)

decision affirming the denial of petitioner’s motion to reopen deportation

proceedings by the Immigration Court (IJ)

.

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Ivan L.R. Lemelle, Senior United States District Judge

for the Eastern District of Louisiana, sitting by designation. 

# FILED

JUN 19 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2

Petitioner argues that notice to his counsel was insufficient , as petitioner could

not be timely found due to his own drug addiction and homelessness issues

. While

this court has empathy for anyone with those serious issues

, the current law

requires holding that legal notice through service upon his counsel of record i s

sufficient

. Garcia v. INS

, 222 F.3d 1208, 1209 (9th Cir. 2000).

Next, petitioner claims the refusal to reopen his removal proceeding sua sponte

was based on legal or constitutional error because the BIA and the IJ ( 1 ) admitted a

contested police report into evidence without authentication of the police report;

(2) deprived petitioner of a fair hearing under the Fifth Amendment; and (3) failed

to order a hearing under 8 U.S.C. §1229a(b)(4)(B) to determine the reliabili ty of

the contested police report.

“ [ T ] his court has jurisdiction to review Board decisions denying sua

sponte reopening for the limited purpose of reviewing the reasoning behind the

decisions for legal or constitutional error.” Bonilla v. Lynch , 840 F.3d 575, 588

(9th Cir. 2016).

In declining to reopen sua sponte , the IJ reasoned that petitioner was ineligible

to adjust his status under 8 U.S.C. § 1159(c), which provides that the Attorney

General may generally adjust an alien’s status, unless the alien is inadmissible

under 8 U.S.C. § 1182(a)(2)(C). The IJ concluded that the Attorney General had

“reason to believ e” that petitioner was a drug trafficker and thereby inadmissible3

under that provision. This conclusion was, it appears, partially based on an August

2, 2011 police incident report, which was corroborated by petitioner’s criminal

history report. Such corr oboration is enough to authenti cate the police report. T he

BIA may admit evidence under either the requirements of the INA statute or

through “any procedure that comports with common law rules of

evidence .” Sinotes

- Cruz v. Gonzales , 468 F.3d 1190, 1196 (9th Cir.

2 006) (quoting Iran v. I.N.S., 656 F.2d 469, 472 n. 8 ( 9th Cir .1981) (as

amended)). Admissibility is generally warranted so long as there is “some sort of

proof that the document is what it purports to be.” Id. Petitioner’ s criminal history

report confirms that petitioner was arrested on August 2, 2011 for “poss/purchase

cocaine base f/sale” a nd “possess unlaw paraphernalia. ” It was reasonable to

conclude that the police report was what it purport ed to be based on this evidence.

S ee United States v. Gadson, 763 F.3d 1189, 1203 (9th Cir. 2014). Therefore, to

the degree the BIA relied on the police report, it did not base its denial of sua

sponte reopening on any legal error.

Petitioner’s testimony that he was not a drug trafficker does not undermine the

evidence establishing a “reason to believe” that petitioner was a drug trafficker,

and therefore the BIA did not err in not expressly addressing petitioner’s

testimony. T he BIA may have determined that there was reason to believe that

petitioner trafficked in controlled substances without considering the police4

incident report. A criminal history report showed that petitioner was arrested for

dr ug trafficking crimes in 2008, 2011, and 2014. T he BIA noted that at the time of

petitioner’s arrest on August 2, 2011, petitioner was “subject to felony probation

for transport, sale, giving away, etc., controlled substances in violation of Cal.

Health & Safety Code § 11352.” This conclusion is purely factual and so not

reviewable as relied upon in the denial of a request for sua sponte reopening. See

Bonilla , 840 F.3d at 588.

Further, petitioner is not entitled to a hearing pursuant to 8 U.S.C.

§ 1229a(b )(4)(B) nor pursuant to the Due Process Clause of the Fifth Amendment.

Section 1229a(b)(4)(B) is applicable only to removal proceedings, not to the

agency’s discretionary decision as to whether to reopen such proceedings sua

sponte . Likewise, petitioner has no fundamental right to discretionary relief from

removal for purposes of due process ; thus, petitioner does not have a right to a

hearing under the Due Process Clause

. Tovar

- Landin v. Ashcroft , 361 F.3d 1164,

1167 (9th Cir. 2004).

We lack jurisdicti on to review petitioner’s unexhausted claim that the Notice to

Appear was defective under Pereira v. Sessions , 138 S. Ct. 2105 (2018). See

Barron v. Ashcroft , 358 F.3d 674, 677 (9th Cir. 2004). Even assuming p etitioner’s

failure to exhaust this claim is not a bar to relief due to a change in the law, see

Huerta

- Guevara v. Ashcroft , 321 F.3d 883, 8866 (9th Cir. 2003), petitioner’s5

argument would nevertheless fail in light of Karingithi v. Whitaker , 913 F.3d 1158

(9th Cir. 1158).

PETITION DENIED