Asad Ali Shah v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASAD ALI SHAH,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-72777
Agency No. A201-383-419
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 14, 2023**
Before: SILVERMAN, SUNG, and SANCHEZ, Circuit Judges.
Asad Ali Shah, a native of Pakistan and citizen of Pakistan and Mexico,
petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s decision denying his motion to
reopen and rescind his in absentia removal order. We have jurisdiction under
* 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
MAR 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 20-72777
8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
reopen, and we review de novo questions of law, including claims of ineffective
assistance of counsel. 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 Shah’s motion to reopen
based on lack of notice where Shah was personally served a notice to appear
including all proper advisals, his notice of hearing was sent to the address on file
with the immigration court, and his attorney notified him of his change in hearing
date. See 8 U.S.C. § 1229(c) (“[S]ervice by mail . . . shall be sufficient if there is
proof of attempted delivery to the last address provided,” and noncitizen was
served a notice to appear with advisal to inform the agency of his address and the
consequences of failing to do so); see also Khan v. Ashcroft, 374 F.3d 825, 828
(9th Cir. 2004) (actual notice is sufficient to meet due process requirements).
The agency did not abuse its discretion in denying Shah’s motion to reopen
based on exceptional circumstances where he did not establish that his failure to
appear at his hearing was caused by ineffective assistance of counsel or another
exceptional circumstance beyond his control. See 8 U.S.C. § 1229a(e)(1)
(exceptional circumstances defined as circumstances beyond the control of the
noncitizen).

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We do not address Shah’s contentions regarding his eligibility for asylum
and related relief because the agency did not reach these issues in denying his
motion to reopen. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir.
2011) (“In reviewing the decision of the BIA, we consider only the grounds relied
upon by that agency.” (citation and internal quotation marks omitted)).
We take no action on Shah’s renewed request for employment authorization.
See 8 C.F.R. § 208.7(a).
We do not consider the materials Shah submitted with his supplemental
letter that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955,
963-64 (9th Cir. 1996) (en banc).
The temporary stay of removal remains in place until the mandates issues.
PETITION FOR REVIEW DENIED.

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