Kerit Lamar Johnson v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KERIT LAMAR JOHNSON,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 17-70720
Agency No. A205-311-853
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2019**
Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.
Kerit Lamar Johnson, a native and citizen of Jamaica, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) order denying his motion to reopen removal
proceedings conducted in absentia. Our jurisdiction is governed by 8 U.S.C.
* 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).
FILED
APR 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§ 1252. We review the denial of a motion to reopen for an abuse of discretion.
Arredondo v. Lynch, 824 F.3d 801, 805 (9th Cir. 2016). We deny in part and
dismiss in part the petition for review.
The agency did not abuse its discretion in denying Johnson’s motion to
reopen as untimely where it was filed seven months after the IJ’s order of removal
and Johnson failed to show that he did not fail to appear at his final removal
hearing. See 8 C.F.R. § 1003.23(b)(4)(ii) (in absentia removal order “may be
rescinded only upon a motion to reopen filed within 180 days after the date of the
order of removal, if the alien demonstrates that the failure to appear was because of
exceptional circumstances”); see also Perez v. Mukasey, 516 F.3d 770, 774 (9th
Cir. 2008) (“a petitioner who arrives late for his immigration hearing, but while the
IJ is still in the courtroom, has not failed to appear for that hearing”).
To the extent Johnson contends his motion to reopen was timely filed
because he sent a request for a new hearing to the BIA in April 2016, we lack
jurisdiction to consider this unexhausted contention. See Tijani v. Holder, 628 F.3d
1071, 1080 (9th Cir. 2010) (this court lacks jurisdiction to review contentions not
raised before the agency).
We do not consider the extra-record evidence that Johnson submitted for the
first time with his opening brief. See 8 U.S.C. § 1252(b)(4)(A); Dent v. Holder,
627 F.3d 365, 371 (9th Cir. 2010) (stating standard for review of out-of-record

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evidence).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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