Conrado Valenzuela-Abril v. Jefferson Sessions ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONRADO VALENZUELA-ABRIL, No. 15-72991
Petitioner, Agency No. A087-526-866
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 11, 2017**
Before: CANBY, KOZINSKI, and HAWKINS, Circuit Judges.
Conrado Valenzuela-Abril, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
remand based on a claim of ineffective assistance of counsel and dismissing his
appeal from an immigration judge’s decision denying cancellation of removal. We
*
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).
have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
denial of a motion to remand, and review de novo questions of law. Romero-Ruiz
v. Mukasey, 538 F.3d 1057, 1061-62 (9th Cir. 2008). We review for abuse of
discretion the denial of a continuance. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th
Cir. 2009). We deny the petition for review.
The BIA did not abuse its discretion or violate due process in declining to
remand based on ineffective assistance of counsel, where Valenzuela-Abril failed
to comply with the procedural requirements of Matter of Lozada, 19 I. & N. Dec.
647, 639 (BIA 1988). See Correa-Rivera v. Holder, 706 F.3d 1128, 1131 (9th Cir.
2013) (“Appeals asserting ineffective assistance claims . . . are effectively motions
to reopen.”); Al Ramahi v. Holder, 725 F.3d 1133, 1138-39 (9th Cir. 2013) (no
error in failing to find ineffective assistance in the absence of evidentiary support
required by Matter of Lozada). Contrary to Valenzuela-Abril’s contention, any
ineffective assistance was not plain on the face of the record. See Tamang v.
Holder, 598 F.3d 1083, 1090-91 (9th Cir. 2010) (failure to satisfy Lozada was fatal
to ineffective assistance of counsel claim where ineffectiveness was not plain on
the face of the record).
The agency did not abuse its discretion or violate due process in declining to
grant a further continuance, where Valenzuela-Abril had previously been granted a
two-year continuance to gather and submit additional evidence. See 8 C.F.R.
2 15-72991
§ 1003.29; Ahmed, 569 F.3d at 1012 (listing factors to consider when reviewing
the denial of a continuance); Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th
Cir. 2014) (“To prevail on a due-process claim, a petitioner must demonstrate both
a violation of rights and prejudice.”).
PETITION FOR REVIEW DENIED.
3 15-72991