Adan Prieto-Cortez v. Loretta E. Lynch , 641 F. App'x 761 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 01 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADAN PRIETO-CORTEZ, No. 13-73750
Petitioner, Agency No. A095-804-565
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 24, 2016**
Before: LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.
Adan Prieto-Cortez, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s (“IJ”) denial of his motion to reopen removal proceedings
based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1252. We review for abuse of discretion the denial of a motion to reopen.
Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011), and we review de novo
constitutional claims, Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012). We
deny the petition for review.
The agency did not abuse its discretion in denying Prieto-Cortez’s untimely
motion to reopen that alleges ineffective assistance by the attorney who
represented him before the IJ, where Prieto-Cortez failed to comply with the
threshold requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and
the alleged ineffective assistance is not “plain on the face of the administrative
record,” see Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir. 2000).
Prieto-Cortez’s due process claim fails because he has not demonstrated how
he was prejudiced by the IJ issuing the denial of the motion to reopen prior to
Prieto-Cortez’s receipt of the immigration court file and hearing tapes. See Dent v.
Holder, 627 F.3d 365, 373 (9th Cir. 2010) (to prevail on a due process claim, an
alien must “show prejudice, which means that the outcome of the proceeding may
have been affected by the alleged violation”).
PETITION FOR REVIEW DENIED.
2 13-73750