Domingo Huinac-Vicente v. Loretta E. Lynch

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 25 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DOMINGO ALBERTO HUINAC- No. 11-71152
VICENTE,
Agency No. A070-201-354
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
Domingo Alberto Huinac-Vicente, a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying
his motion to reopen deportation proceedings conducted in absentia. We have
jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of
*
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).
a motion to reopen and review de novo claims of due process violations.
Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the
petition for review.
The BIA did not abuse its discretion in denying Huinac-Vincente’s motion
to reopen based on lack of notice. Personal service on Huinac-Vincente of the
Order to Show Cause (“OSC”) was valid where there was no statutory requirement
that the OSC be orally translated. See 8 U.S.C. § 1252b(a)(3) (1996); Khan v.
Ashcroft, 374 F.3d 825, 828-29 (9th Cir. 2004) (notice proper where INS adhered
to statutorily imposed procedural requirements and notice was reasonably
calculated to inform petitioner of hearing). Huinac-Vincente’s contention that he
was prejudiced by the absence of oral notice as was required under former 8 C.F.R.
§ 242.1(c) (1996) is not persuasive. See Matter of Hernandez, 21 I. & N. Dec. 224,
226-27 (BIA 1996); see also Kohli v. Gonzales, 473 F.3d 1061, 1066-67 (9th Cir.
2007) (petitioner must demonstrate that he was prejudiced by the agency’s
violation of its own regulation). Huinac-Vincente’s remaining contentions
regarding the sufficiency of the OSC are unavailing.
The BIA did not abuse its discretion in denying the motion to reopen based
on ineffective assistance of counsel where Huinac-Vincente failed to establish
2 11-71152
prejudice. Iturribarria v. INS, 321 F.3d 889, 899-900 (9th Cir. 2003) (requiring
prejudice to prevail on ineffective assistance claim).
Accordingly, to the extent Huinac-Vincente contends that his right to due
process was violated when the BIA declined to reopen his case, this contention
fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and
prejudice to prevail on a due process claim).
PETITION FOR REVIEW DENIED.
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