Yolver Estrada-Mendoza v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YOLVER ESTRADA-MENDOZA, AKA No. 18-70563
Yolber Mendoza Estrada,
Agency No. A087-749-566
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 7, 2020**
Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges.
Yolver Estrada-Mendoza, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order (i) dismissing his
appeal from an immigration judge’s (“IJ”) decision denying cancellation of
removal, and (ii) denying his motion to remand. We have jurisdiction under 8
*
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).
U.S.C. § 1252. We review for abuse of discretion the decision to deem an
application abandoned and the denial of a motion to remand. Taggar v. Holder,
736 F.3d 886, 889 (9th Cir. 2013). We deny the petition for review.
The agency did not abuse its discretion in deeming Estrada-Mendoza’s
application for cancellation of removal abandoned, where he did not file the
application by the deadline imposed by the IJ. See 8 C.F.R. § 1003.31(c) (“If an
application or document is not filed within the time set by the Immigration Judge,
the opportunity to file that application or document shall be deemed waived.”);
Taggar, 736 F.3d at 890. To the extent Estrada-Mendoza contends that ineffective
assistance of counsel excuses his failure to timely file the application, he did not
meet the threshold requirements for establishing ineffective assistance of counsel
set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See Reyes v.
Ashcroft, 358 F.3d 592, 598-99 (9th Cir. 2004) (upholding BIA’s denial of a
motion for failure to comply with the Lozada requirements).
The BIA did not abuse its discretion in denying Estrada-Mendoza’s motion
to remand, where he has not established prima facie eligibility for cancellation of
removal. See 8 U.S.C. § 1229b(b)(1); Najmabadi v. Holder, 597 F.3d 983, 986
(9th Cir. 2010) (BIA may deny motion to reopen for failure to establish prima facie
eligibility for relief).
PETITION FOR REVIEW DENIED.
2 18-70563