Iniguez-Montes v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
MAR 20 2023
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Eva Iniguez-Montes, No. 21-446
Petitioner, Agency No. A070-917-691
v.
MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 15, 2023**
Pasadena, California
Before: LEE, BRESS, MENDOZA, Circuit Judges.
Petitioner Eva Iniguez-Montes, native and citizen of Mexico, petitions for
review of a Board of Immigration Appeals (“BIA”) order upholding an
Immigration Judge’s (“IJ”) denial of Iniguez-Montes’ Motion to Reopen
Removal Proceedings. Because the BIA affirmed the IJ without opinion, “we
evaluate the IJ’s decision as we would that of the Board.” Lanza v. Ashcroft,
389 F.3d 917, 925 (9th Cir. 2004). We review the denial of a motion to reopen
*
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).
for abuse of discretion. Sembiring v. Gonzales, 499 F.3d 981, 985 (9th Cir.
2007). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition
for review.
The agency did not abuse its discretion in concluding that Iniguez-Montes
failed to rebut the presumption of effective service by regular mail. See Mejia-
Hernandez v. Holder, 633 F.3d 818, 822 (9th Cir. 2011). Iniguez-Montes
admits that the Notice to Appear and removal order were mailed to the correct
address. See 8 U.S.C. § 1229a(b)(5)(A) (“The written notice . . . shall be
considered sufficient . . . if provided at the most recent address provided [by the
noncitizen].”). Beyond her unsubstantiated assertion that she did not receive
notice, Iniguez-Montes provided no other evidence indicating non-receipt. The
removal order was not returned to the Immigration Court as undeliverable.
Moreover, the agency did not abuse its discretion in finding Iniguez-
Montes failed to establish an ineffective assistance of counsel claim. Iniguez-
Montes failed to meet the procedural requirements set forth in Matter of
Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988). She did not submit an affidavit
setting forth in detail her agreement with prior counsel, and the record lacks any
evidence that prior counsel was notified of Iniguez-Montes’ allegations. See
Azanor v. Ashcroft, 364 F.3d 1013, 1023 (9th Cir. 2004); Reyes v. Ashcroft, 358
F.3d 592, 598–99 (9th Cir. 2004). Nor did Iniguez-Montes establish that “the
ineffectiveness of counsel was plain on its face.” Guan v. Barr, 925 F.3d 1022,
1033 (9th Cir. 2019) (quoting Tamang v. Holder, 598 F.3d 1083, 1090 (9th Cir.
2 21-446
2010)).
The temporary stay of removal remains in place until the mandate issues.
PETITION DENIED.
3 21-446