Zapata v. Mukasey , 255 F. App'x 848 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 20, 2007
No. 07-60032
Summary Calendar Charles R. Fulbruge III
Clerk
CAROLINA ZAPATA
Petitioner
v.
MICHAEL B. MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A97 934 977
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Carolina Zapata, a native and citizen of Colombia, petitions this court to
review the decision of the Board of Immigration Appeals (BIA) dismissing her
appeal of the Immigration Judge’s (IJ) denial of her motion to reopen her
deportation proceedings. Zapata had moved to reopen her case on the basis of
her mother’s availability to testify and documentary evidence that her relatives
received asylum in Canada. The IJ determined, and the BIA agreed, that the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-60032
evidence Zapata sought to introduce was not unavailable to her prior at her
immigration hearing.
Zapata asserts that the evidence was both new and material. Zapata
admits that the evidence regarding her relatives’ refugee status in Canada was
available to her before her deportation hearing. Zapata also has not shown that
the testimony her mother would have offered could not have been given via
affidavit in her deportation proceeding. Therefore, Zapata has not demonstrated
that any evidence she sought to present in her motion to reopen was previously
unavailable. Because the evidence was not previously unavailable, the BIA did
not abuse its discretion in denying Zapata relief. 8 C.F.R.
§§ 1003.2(c)(1), 1003.23(b)(3); Waggoner v. Gonzales, 488 F.3d 632, 639 (5th Cir.
2007).
Zapata argues that the BIA abused its discretion when it did not consider
her asylum claim in its opinion. Zapata, however, filed a timely notice of appeal
only from the IJ’s denial of the motion to reopen, in which Zapata had
specifically moved for her case to be reopened “due to the availability of new
evidence that establishes [her] eligibility for withholding of removal.”
Finally, Zapata argues that the BIA abused its discretion for not ruling on
the ineffective assistance of counsel claim that she raised for the first time in her
appeal of the denial of her motion to reopen. The BIA ordinarily does not
entertain claims raised for the first time on appeal. In re: J-Y-C-, 24 I. & N. Dec.
260, 266 n.1 (BIA 2007). However, even if it were to consider an ineffective
assistance claim that was raised for the first time in the appeal of the denial of
a motion to reopen, the alien would have to demonstrate that she met the
requirements of Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1998). See In
re: Cruz-Garcia, 22 I. & N. Dec. 1155, 1159 (BIA 1999) (en banc). Zapata admits
that she has not done so. Zapata’s petition for review is DENIED.
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