                                                                                      FILED
                                                                                       DEC 17 2010

                               NOT FOR PUBLICATION *                               MOLLY C. DWYER, CLERK
                                                                                    U .S. C O U R T OF APPE ALS



                       UNITED STATES COURT OF APPEALS

                                FOR THE NINTH CIRCUIT

 RAMTIN GHAFARIAN DEHKORDI,                             No. 08-70275

              Petitioner,                               Agency No. A070-280-399
   v.

 ERIC H. HOLDER, JR.,                                   MEMORANDUM

               Respondent.


                        On Petition for Review of an Order of the
                            Board of Immigration Appeals

                               Submitted November 4, 2010 **
                                 San Francisco, California

Before: GOULD and CALLAHAN, Circuit Judges, and KORMAN,*** District Judge.

        Ramtin Ghafarian Dehkordi, who entered the country under the Visa Waiver

Pilot Program, petitions for review of the Board of Immigration Appeals’ (“BIA”)

        *
         This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
        **
          This panel unanimously finds this case suitable for decision without oral argument.
See Fed. R. App. P. 34(a)(2).
        ***
          The Honorable Edward R. Korman, Senior United States District Judge for the
Eastern District of New York, sitting by designation.


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order affirming the Immigration Judge’s order denying his motion to reopen. The

Immigration Judge deemed Dehkordi’s applications for asylum, withholding of

removal, and relief under the Convention Against Torture to have been abandoned,

and accordingly denied them, because Dehkordi failed to appear for the master

calendar hearing. Dehkordi filed a motion to reopen proceedings, claiming that he had

not received notice of the hearing because he changed residences and the Immigration

Court sent the notice to his former residence. The Immigration Judge denied the

motion, finding that Dehkordi was properly charged with constructive notice of the

hearing because the Immigration Court mailed the notice of hearing to Dehkordi’s

address of record.

      Dehkordi concedes that he failed to notify the Immigration Court of his new

address. But he argues that the Immigration Court failed to notify him adequately that

he was obligated to report his new address to the Immigration Court. Specifically, the

Form I-863 that he received included the following instruction: “In the event of your

release from custody, you must immediately report any change of address to the

Immigration Court on Form EOIR-33 . . . .” Dehkordi argues that this instruction

failed to provide adequate notice because it seems to require address-change reporting

to the Immigration Court on Form EOIR-33 only “[i]n the event of [the alien’s]

release from custody.” Yet Dehkordi has never been in or released from custody.



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Thus, Dehkordi argues, he was not adequately notified that this obligation applied to

him.

                                                I.

       We have jurisdiction under 8 U.S.C. § 1252(a) to review the BIA’s order only

if a final order of removal was entered by the Immigration Judge. See Alcala v.

Holder, 563 F.3d 1009, 1013 (9th Cir. 2009).           Although there are conflicting

indications in the record regarding whether an in absentia removal order was entered

below, the denial of an asylum application in a Visa Waiver Program proceeding

before an Immigration Judge “is the functional equivalent of a removal order,”

Kanacevic v. INS, 448 F.3d 129, 134 (2d Cir. 2006), because no other relief from

removal is available to a Visa Waiver Program participant whose period of authorized

stay has expired. See Mitondo v. Mukasey, 523 F.3d 784, 787 (7th Cir. 2008); Shehu

v. Att’y Gen. of U.S., 482 F.3d 652, 656 (3d Cir. 2007); Nreka v. U.S. Att’y Gen., 408

F.3d 1361, 1367 (11th Cir. 2005). The denial of the motion to reopen asylum-only

proceedings in which the asylum application was denied is therefore reviewable under

8 U.S.C. § 1252(a).

       We review the BIA’s dismissal of Dehkordi’s appeal for abuse of discretion.

See Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). The BIA abused its

discretion only if it acted “arbitrarily, irrationally, or contrary to law.” Id. We review



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both the legal determinations of the BIA and the claim of a due process violation de

novo. See Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791 (9th Cir. 2003).

                                             II.

      The asylum applications of aliens who fail to appear for their asylum-only

hearing must be denied. 8 C.F.R. § 1208.2(c)(3)(ii). But aliens may move to reopen

proceedings if they “did not receive the notice” of the hearing date.          Id. at

§ 1208.2(c)(3)(ii)(A). Except as otherwise specified in 8 C.F.R. § 1208.2, the rules

of procedure that apply to removal proceedings also apply to these asylum-only

proceedings. 8 C.F.R. § 1208.2(c)(3)(i). Under these rules, aliens are deemed to have

received a hearing notice if the Immigration Court mails it to the alien’s address of

record, provided the alien has previously been advised in writing of his or her

obligation to report any address change to the Immigration Court. See 8 U.S.C.

§ 1229 (a)(1)(F)(ii), (c). Here, Dehkordi claims that he did not receive constructive

notice of the hearing because the Form I-863 was confusing. We agree.

      The notice contained in the Form I-863 can be understood to mean that an alien

must notify the Immigration Court of a change of address on Form EOIR-33 only if

the alien is released from custody. Yet there is no dispute that Dehkordi was never

in or released from custody. Consequently, Dehkordi may not be charged with

constructive notice of the hearing.



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      Our holding in this case is consistent with Singh v. Ashcroft, 362 F.3d 1164 (9th

Cir. 2004), which held that another address-reporting instruction in an immigration

form that was similarly expressed in a conditional statement failed to provide adequate

notice of the alien’s address-reporting obligation. Our decision in Popa v. Holder,

571 F.3d 890 (9th Cir. 2009), is not inconsistent. There, the alien misconstrued

multiple provisions explaining the address-reporting requirement, whereas here, the

Form I-863 contained a single instruction nested in a misleading conditional statement

concerning the alien’s release from custody.

      In sum, the BIA abused its discretion in dismissing Dehkordi’s appeal of the

Immigration Judge’s denial of his motion to reopen because, under the circumstances,

Dehkordi did not receive adequate notice of the hearing, see 8 C.F.R. §

1208.2(c)(3)(ii)(A), and proceeding against him in absentia thus violated his right to

due process, see Andia v. Ashcroft, 359 F.3d 1181, 1184–85 (9th Cir. 2004) (per

curiam).

                                              III.

      Dehkordi appealed the BIA’s conclusion that “even if the instant proceedings

were reopened, the Immigration Judge would not have jurisdiction to entertain an

application for adjustment of status.” We agree with the BIA.

      Visa Waiver Program participants are “allowed to seek adjustment of their



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status by filing an immediate relative petition.” Freeman v. Gonzales, 444 F.3d 1031,

1033 n.1 (9th Cir. 2006) (citing 8 U.S.C. §§ 1187, 1255(c)(4)). But any such

application for adjustment of status must be filed within the 90-day period of

authorized stay. See Momeni v. Chertoff, 521 F.3d 1094, 1096 (9th Cir. 2008).

Although Dehkordi claims that he might be eligible for adjustment of status based

upon a once-anticipated marriage to a U.S. citizen and/or an allegedly-approved

immediate-relative application, he has not even argued that he applied for adjustment

of status within the 90-day period of his authorized stay. Consequently, Dehkordi is

ineligible to seek adjustment of status on the basis of an immediate-relative

application. See id. at 1096–97.

                                     CONCLUSION

      For the foregoing reasons, Dehkordi’s petition for review is GRANTED in part

and DENIED in part, and the matter is REMANDED to the BIA for further

proceedings consistent with this order.




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