Sandy Perez-Lopez v. Jeff B. Sessions, 677 F. App'x 348

Perez-Lopez, a Mexican national, missed his immigration removal hearing and an in-absentia removal order was entered against him.
He filed a motion to reopen, arguing he missed the hearing because his girlfriend told him it was canceled; he did not confirm with counsel or the court.
Perez sought reopening to pursue cancellation of removal, but did not attach an application for cancellation or other evidence of eligibility to his motion to reopen.
The Immigration Judge denied the motion to reopen; the BIA dismissed Perez’s appeal and noted (incorrectly) that no affidavit had been submitted, though the affidavit’s contents were in the motion.
Perez argued the BIA abused its discretion and violated due process; the Ninth Circuit reviewed the denial for abuse of discretion and constitutional claims de novo.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether exceptional circumstances justify rescission of the in-absentia order	Perez: misinfo from girlfriend prevented attendance, constituting exceptional circumstances	Government: mistaken belief based on Perez’s failure to verify; misinformation from girlfriend insufficient and Perez failed to seek confirmation	Denied — no exceptional circumstances shown; reliance on girlfriend’s statement without checking counsel/court insufficient
Whether BIA’s misstatement about an affidavit and alleged due-process violation required reopening	Perez: BIA misstated record and this violated due process	Government: substance of Perez’s declaration was considered; no prejudice shown because Perez failed to show eligibility for cancellation	Denied — misstatement not reversible error; no due-process prejudice shown without proof of eligibility

Singh-Bhathal v. INS, 170 F.3d 943 (9th Cir. 1999) (reliance on an immigration consultant over official sources does not show exceptional circumstances)
Lo v. Ashcroft, 341 F.3d 934 (9th Cir. 2003) (attorney or agent misinformation can constitute ineffective assistance and exceptional circumstances)
Valencia-Fragoso v. INS, 321 F.3d 1204 (9th Cir. 2003) (misunderstanding hearing time did not show exceptional circumstances where relief sought was discretionary)
Singh v. INS, 295 F.3d 1037 (9th Cir. 2002) (extraordinary circumstances where petitioner had approved visa petition and denial would cause severe family hardship)
Avagyan v. Holder, 646 F.3d 672 (9th Cir. 2011) (BIA abuses discretion if it fails to consider evidence and claims presented)
Padilla-Martinez v. Holder, 770 F.3d 825 (9th Cir. 2014) (to prevail on due-process claim, petitioner must show both a rights violation and prejudice)
Lata v. INS, 204 F.3d 1241 (9th Cir. 2000) (prejudice requires a showing that the alleged violation affected the outcome)

PETITION FOR REVIEW DENIED.