JOSUE ISAI SANTOS-PORTILLO, AKA Josue Issai Santos-Portillo v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSUE ISAI SANTOS-PORTILLO, AKA
Josue Issai Santos-Portillo,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 15-72204
Agency No. A205-004-833
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Josue Isai Santos-Portillo, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his motion to reopen removal
proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JAN 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 15-72204
We review for abuse of discretion the denial of a motion to reopen, and review de
novo constitutional claims and 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 Santos-Portillo’s motion
to reopen for failure to establish exceptional circumstances, where he failed to
attend his hearing because he forgot the date of his hearing due to stress and
confusion. See 8 C.F.R. §1003.23(b)(4)(ii); 8 U.S.C. §1229a(e)(1); Valencia-
Fragoso v. INS, 321 F.3d 1204, 1205-06 (9th Cir. 2003) (no exceptional
circumstances where petitioner forgot the scheduled time of her hearing).
Contrary to Santos-Portillo’s contention, the agency applied the correct legal
standard and did not fail to address relevant factors or evidence. See Celis-
Castellano, 298 F.3d 888, 892 (9th Cir. 2002) (applying a totality of the
circumstances test to determine whether exceptional circumstances were present);
Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (the agency must consider
the issues raised and express its decision “in terms sufficient to enable a reviewing
court to perceive that it has heard and thought and not merely reacted” (citation
and quotation marks omitted)). Nor did the BIA err in distinguishing Santos-
Portillo’s case from Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000), where
Santos-Portillo’s only possible relief from removal was discretionary.

-- 2 of 3 --

3 15-72204
Santos-Portillo has not established that the agency violated his due process
rights by denying the motion. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.
2000) (requiring error and prejudice to prevail on a due process claim).
PETITION FOR REVIEW DENIED.

-- 3 of 3 --