Jose Lopez-Garcia v. Jefferson Sessions ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 2 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ANTONIO LOPEZ-GARCIA, No. 14-72453
Petitioner, Agency No. A200-898-337
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N. R. SMITH, Circuit Judges.
Jose Antonio Lopez-Garcia, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ order dismissing his appeal from the
immigration judge’s decision denying his motion to reopen removal proceedings.
We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
*
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).
denial of a motion to reopen and review de novo questions of law. Chuen Piu
Kwong v. Holder, 671 F.3d 872, 880 (9th Cir. 2011). We deny the petition for
review.
As to Lopez-Garcia’s contentions regarding ineffective assistance of
counsel, the agency did not err in denying Lopez-Garcia’s motion to reopen where
he failed to comply with the requirements of Matter of Lozada, 19 I. & N. Dec.
637 (BIA 1988), and any ineffective assistance was not plain on the face of the
record, see Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir. 2000); see also Reyes
v. Ashcroft, 358 F.3d 592, 597 (9th Cir. 2004) (ineffective assistance of counsel
claim failed where petitioner did not submit a personal affidavit outlining his
agreement with his former attorney and describing the attorney’s alleged
misconduct, and there was no evidence petitioner’s former attorney had been
notified of his ineffective assistance allegations).
As to Lopez-Garcia’s remaining contentions, the agency did not abuse its
discretion in denying his motion to reopen where he failed to set forth evidence
that was material and not available and could not have been discovered or
presented at Lopez-Garcia’s former immigration hearing. See 8 C.F.R.
§ 1003.2(c)(1); Goel v. Gonzales, 490 F.3d 735, 738 (9th Cir. 2007) (“If [the
2 14-72453
evidence sought to be offered] was available or capable of being discovered at [the
former hearing], it cannot provide a basis for reopening.”) (citation omitted).
PETITION FOR REVIEW DENIED.
3 14-72453