Resendiz v. Holder

FILED
NOT FOR PUBLICATION JUL 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
J. RODRIGO RESENDIZ; PERLA No. 05-74991
GUADALUPE ALONZO,
Agency Nos. A072-262-863
Petitioners, A079-262-864
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 16, 2010
San Francisco, California
Before: RIPPLE, RYMER and FISHER, Circuit Judges.**
J. Rodrigo Resendiz and Perla Guadalupe Alonzo, husband and wife and
natives and citizens of Mexico, petition for review of the Board of Immigration
Appeals’ (“BIA”) order denying their motion to reopen removal proceedings based
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kenneth F. Ripple, Senior Judge, United States Court of
Appeals for the Seventh Circuit, sitting by designation.
on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252
and we deny the petition.
Even if petitioners’ noncompliance with the procedural requirements of
Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), should be excused, they have
not demonstrated any prejudice from their counsel’s alleged ineffective assistance.
The Immigration Judge and the BIA found that petitioners were ineligible for
cancellation of removal because they could not show that their removal would
cause exceptional and extremely unusual hardship to a qualifying relative. 8
U.S.C. § 1229b(b)(1)(D). Even had petitioners' counsel filed a notice of appeal,
we would have lacked jurisdiction to review the IJ's and BIA's finding. See 8
U.S.C. § 1252(a)(2)(B)(i); Martinez-Rosas v. Gonzales,424 F.3d 926, 929-30 (9th
Cir. 2005). And petitioners have not shown plausible grounds for relief on their
underlying claim. See Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir. 2006) (holding
that when ineffective counsel deprives an alien of appellate proceedings the court
“will find that a petitioner has been denied due process if he can demonstrate
‘plausible grounds for relief’ on his underlying claim” (quoting Dearinger ex rel.
Volkova v. Reno, 232 F.3d 1042, 1045 (9th Cir. 2000)) (additional internal
quotation marks and citations omitted)); Rojas-Garcia v. Ashcroft, 339 F.3d 814,
826 (9th Cir. 2003) (holding that a petitioner suffered no prejudice from ineffective
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assistance of counsel when he presented no plausible grounds for relief); see also
Partap v. Holder, 603 F.3d 1173, 1174 (9th Cir. 2010) (per curiam) (explaining
that the hardship of an unborn child cannot serve as the basis for cancellation of
removal).
PETITION DENIED.
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