Rodriguez-Serrano v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ENRIQUE RODRIGUEZ SERRANO, 
Petitioner, No. 04-75579
v.
 Agency No.
A79-274-199
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 16, 2006*
San Francisco, California
Filed December 5, 2006
Before: Susan P. Graber, M. Margaret McKeown, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Graber
*This panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
19173
SERRANO v. GONZALES 19175
COUNSEL
Frank P. Sprouls, Law Office of Ricci & Sprouls, San Fran-
cisco, California, for the petitioner.
David E. Dauenheimer, Office of Immigration Litigation,
United States Department of Justice, Washington, D.C., for
the respondent.
OPINION
GRABER, Circuit Judge:
Petitioner Jose Enrique Rodriguez Serrano appeals the
Board of Immigration Appeals’ (“BIA”) denial of his
untimely motion to reopen his removal proceedings.
FACTUAL AND PROCEDURAL HISTORY
Petitioner is a Mexican citizen who entered the United
States without inspection by an immigration officer in 1989.
On March 29, 2001, Petitioner filed an application for asylum.
That application was referred to the immigration court on
May 24, 2001. The immigration court issued a notice to
appear charging Petitioner with being subject to removal
under section 212(a)(6)(A)(i) of the Immigration and Nation-
ality Act (“INA”). 8 U.S.C. § 1182(a)(6)(A)(i).
On June 18, 2001, Petitioner appeared with counsel before
the immigration judge (“IJ”), admitted that he was removable,
19176 SERRANO v. GONZALES
and applied for cancellation of removal under INA
§ 240A(b)(1). 8 U.S.C. § 1229b(b)(1). The IJ found Petitioner
removable and denied his application for cancellation of
removal. In an order dated June 4, 2003, the IJ granted Peti-
tioner’s application for voluntary removal and provided Peti-
tioner 60 days to leave the country.
On June 17, 2003, Petitioner filed a Notice of Appeal. The
BIA affirmed without opinion the IJ’s order and provided
Petitioner 30 days from its May 20, 2004, order to voluntary
depart.
Petitioner failed to depart. On August 18, 2004, Petitioner
filed a motion to reopen his removal proceedings. Petitioner
was still in the country at the time he filed. In his motion to
reopen, Petitioner stated that he remained in the country
because his wife was pregnant and gave birth to a child with
medical problems. In his motion to reopen, he argued that
these facts “fulfill the exceptional circumstance for failure to
report for Voluntary Departure.” He also argued that he
received ineffective assistance of counsel. The BIA denied
Petitioner’s motion to reopen as untimely.
Petitioner, who is still represented by the same lawyer who
filed the untimely motion to reopen, appeals the BIA’s denial
on the grounds of ineffective assistance of counsel. Addition-
ally, he asks this court to create an “exceptional circum-
stance” tolling exception to the Voluntary Departure statute.
8 U.S.C. § 1229c.
STANDARD OF REVIEW
The BIA’s denial of a motion to reopen is reviewed for
abuse of discretion. INS v. Doherty, 502 U.S. 314, 323 (1992).
We review a petitioner’s claim of ineffective assistance of
counsel to determine whether “the denial of effective counsel
rises to the level of a due process violation and was prejudi-
SERRANO v. GONZALES 19177
cial.” Granados-Oseguera v. Gonzales, 464 F.3d 993, 994
(9th Cir. 2006).
DISCUSSION
[1] In Granados-Oseguera, we held that where a petitioner
was denied due process because of ineffective assistance of
counsel, we remand a motion to reopen to the BIA for recon-
sideration. Id. at 997. To assert a valid due process ineffective
assistance of counsel claim, a petitioner must demonstrate
prejudice; namely, he must show that he has “plausible
grounds for relief.” Id. at 997-98 (citing Ray v. Gonzales, 439
F.3d 582, 588 (9th Cir. 2006)). Petitioner failed to do so here.
In his motion to reopen, Petitioner sought to excuse his failure
to depart based on “exceptional circumstances.” Congress
eliminated the “exceptional circumstance” justification when
it passed the Illegal Immigrant Reform and Immigration
Responsibility Act of 1996. Compare 8 U.S.C. § 1229c(d)
(2006) with id. § 1252b(e)(2)(A) (repealed 1996).
[2] Petitioner argues for the first time on appeal for the cre-
ation of an “exceptional circumstance” equitable tolling
exception to the current statute. That argument was not raised
below and therefore is not properly before us. See Ochave v.
INS, 254 F.3d 859, 867 (9th Cir. 2001).
Petition DENIED in part; DISMISSED in part.