Oscar Alarcon-Cuevas v. Matthew Whitaker ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR ALARCON-CUEVAS, No. 15-70108
Petitioner, Agency No. A087-958-928
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 17, 2018**
Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.
Oscar Alarcon-Cuevas, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
removal proceedings and reissue its previous decision reinstating his voluntary
departure period. We have jurisdiction under 8 U.S.C. § 1252. We review for
*
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).
abuse of discretion the denial of a motion to reopen and reissue. Hernandez-
Velasquez v. Holder, 611 F.3d 1073, 1077 (9th Cir. 2010). We deny the petition for
review.
The BIA did not abuse its discretion in denying as untimely Alarcon-
Cuevas’s motion to reopen based on ineffective assistance of counsel, where he
filed it 18 months after his final order of removal, and he failed to comply with the
procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See
8 C.F.R. § 1003.2(c)(2); Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011) (listing
requirements for equitable tolling on account of ineffective assistance of counsel);
Tamang v. Holder, 598 F.3d 1083, 1090-91 (9th Cir. 2010) (failure to satisfy
Matter of Lozada requirements was fatal to ineffective assistance of counsel claim
where ineffectiveness was not plain on the face of the record).
Alarcon-Cuevas has not shown that the BIA abused its discretion in
declining to reissue its December 12, 2012, order, where the sole basis for his
reissuance request was to reinstate his voluntary departure period, and he does not
challenge the BIA’s determination that it lacked authority to do so. See Corro-
Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) (failure to contest
issue in opening brief resulted in waiver); cf. Singh v. Napolitano, 649 F.3d 899,
901 (9th Cir. 2011) (the BIA has reissued decisions where an alien has shown lack
of notice of the decision).
2 15-70108
In light of this disposition, we do not reach Alarcon-Cuevas’s remaining
contentions regarding ineffective assistance of counsel.
PETITION FOR REVIEW DENIED.
3 15-70108