                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 19 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JUAN AUGUSTO REYES-ESCOBAR,                      Nos. 08-56601

             Petitioner,                         Agency No. A 71-584-048

  v.                                             MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

             Respondent.



                   Appeal from the United States District Court
                      for the Central District of California
                   Audrey B. Collins, District Judge, Presiding

JUAN AUGUSTO REYES-ESCOBAR,                      Nos. 08-70918

             Petitioner,                         Agency No. A 71-584-048

  v.                                             MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

             Respondent.



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

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                       Argued and Submitted February 5, 2010
                                Pasadena, California

Before: WARDLAW and CALLAHAN, Circuit Judges, and SEDWICK, **
District Judge.

      Juan Augusto Reyes-Escobar (“Reyes-Escobar”) appeals the Board of

Immigration Appeals’ (“BIA”) decision affirming the denial of his motion to

reopen his 1994 in absentia exclusion order. He also appeals the district court’s

grant of summary judgment affirming the United States Citizenship and

Immigration Services’ (“USCIS”) determination of his ineligibility for benefits

under the settlement agreement in Am. Baptist Churches v. Thornburg, 760 F.

Supp. 796 (N.D. Cal. 1991) (“ABC Agreement”) . We have jurisdiction pursuant

to 8 U.S.C. § 1252 and 28 U.S.C. § 1291. We affirm the BIA and district court.1

      1.       To prevail on a motion to reopen, Reyes-Escobar must demonstrate

“reasonable cause” for his earlier failure to appear. Matter of Haim, 19 I. & N.

Dec. 641, 642 (BIA 1988). This court reviews de novo Reyes-Escobar’s

“reasonable cause” showing. Hernandez-Vivas v. INS, 23 F.3d 1557, 1560 (9th

Cir. 1994), but cf. Valencia-Fragoso v. INS, 321 F.3d 1204 (9th Cir. 2003).


          **
             The Honorable John W. Sedwick, United States District Judge for the
District of Alaska, sitting by designation.
      1
         Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.

                                    Page 2 of 5
      Reyes-Escobar did not demonstrate “reasonable cause” for his failure to

appear at his 1994 asylum hearing. The record establishes his awareness of the

hearing. His explanation, that he was denied admission to the building due to late

arrival, is implausible because the building was open-access. He failed, moreover,

to contact the government for ten years after the missed hearing to explain his

absence.

      2.     Reyes-Escobar is not entitled to administrative closure. He did not

request administrative closure at his 1994 hearing, and neither the ABC Agreement

nor due process entitled him to administrative closure in absentia. In re Salvador

Morales, 21 I. & N. Dec. 130, 137 (BIA 1996) (en banc); Am. Baptist Churches,

760 F. Supp. at 805. The purpose of administrative closure is to allow USCIS the

opportunity to determine ABC Agreement benefits eligibility. Morales, 21 I. & N.

Dec. at 134. Because USCIS has determined that Reyes-Escobar is ineligible, his

request for administrative closure is moot.

3.    We review de novo the district court’s grant of summary judgment and

interpretation of settlement agreements. Canyon Ferry Road Baptist Church of

East Helena, Inc. v. Unsworth, 556 F.3d 1021, 1027 (9th Cir. 2009); Sotelo v.

Gonzales, 430 F.3d 968, 970 (9th Cir. 2005).



                                    Page 3 of 5
4.    We conclude that Reyes-Escobar cannot benefit from the Fleuti doctrine.

See Rosenburg v. Fleuti, 374 U.S. 449, 462 (1963). The Fleuti doctrine provides

that a legal permanent resident’s excursion outside the United States may not

interrupt his residency period depending on three factors: (1) the length of the

alien’s absence; (2) the purpose of the visit; and (3) whether the alien must produce

travel documents.

      Reyes-Escobar cannot take advantage of the Fleuti doctrine for several

reasons. First, it is not clear that the doctrine applies to ABC Agreement members

because it was developed to benefit legal permanent residents and concerns the

interpretation of a section of the Immigration and Nationality Act that is not at

issue here. Moreover, because the ABC Agreement contemplates that class

members will become ineligible for benefits if they leave the United States and are

apprehended upon reentry, Am. Baptist Churches, 760 F. Supp at 800, the Fleuti

doctrine does not appear to apply to ABC Agreement members. Furthermore, even

if the Fleuti doctrine applied, Reyes-Escobar would not qualify for relief because

he chose to leave the country after being denied the requisite travel documents.

5.    The government did not violate the ABC Agreement by apprehending

Reyes-Escobar on reentry. As noted, the ABC Agreement contemplated that

members could lose eligibility by leaving the United States. Am. Baptist Churches,


                                     Page 4 of 5
760 F. Supp. at 800. Also, contrary to Reyes-Escobar’s contention, paragraph 17

of the ABC Agreement, which prohibits the government from “detain[ing]” class

members except under limited circumstances, does not preclude the government

from apprehending class members at point of entry. See generally Chaly-Garcia v.

U.S., 508 F.3d 1201, 1203 (9th Cir. 2007) (holding that the ABC Agreement “is a

contract and its enforceability is governed by familiar principles of contract law”

and that “[c]ontract terms are to be given their ordinary meaning, and when the

terms of a contract are clear, the intent of the parties must be ascertained from the

contract itself.”).

6.     Finally, registering as an ABC class member did not vest Reyes-Escobar’s

ABC benefits. He became ineligible for benefits under Paragraph 2 of the ABC

Agreement following his apprehension. Am. Baptist Churches, 760 F. Supp. at

800.

       Accordingly, the BIA’s decision and the district court’s grant of summary

judgment are AFFIRMED.




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