Concha v. Holder

FILED
NOT FOR PUBLICATION MAY 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DAVID J. CONCHA, No. 04-75337
Petitioner, Agency No. A073-959-672
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 May 3, 2010
Pasadena, California
Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and LEFKOW, **
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
David J. Concha petitions for review of the Board of Immigration Appeals’
(“BIA”) decision affirming without opinion an immigration judge’s denial of his
untimely motion to reopen deportation proceedings. We have jurisdiction pursuant
to 8 U.S.C. § 1252, and we deny the petition for review.
We GRANT the request for judicial notice of the 2007 approval of the Form
I-130 Petition for Alien Relative filed on Concha’s behalf by his mother, a
naturalized U.S. citizen. However, our review of agency action is generally limited
to issues first raised in administrative proceedings below. See Barron v. Ashcroft,
358 F.3d 674, 678 (9th Cir. 2004). The I-130 was approved several years after the
BIA issued its decision, and is, therefore, not relevant to our review of the denial of
the motion to reopen.
We review the BIA’s denial of a motion to reopen for abuse of discretion.
Reyes v. Ashcroft, 358 F.3d 592, 595 (9th Cir. 2004). The BIA did not abuse its
discretion in denying Concha’s motion to reopen for failure to comply with the
requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988),
where Concha failed to provide an affidavit describing his agreement with counsel
and failed to file a state bar complaint or explain why such a complaint was not
filed. See Reyes, 358 F.3d at 596 (quoting Lata v. INS, 204 F.3d 1241, 1246 (9th
Cir. 2000)). Nor was ineffective assistance of counsel plain on the face of the
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record, excusing compliance with Matter of Lozada. See id. at 597–98. An
unfortunate result is insufficient to demonstrate “obvious and undisputed”
ineffective assistance of counsel. See id. at 597. Concha has consistently failed to
point to any evidence in the record supporting his claim of ineffective assistance of
counsel at his original immigration hearing in 1996. Therefore, the petition for
review is DENIED without prejudice to Concha’s ability to pursue any remedies
that may now be available due to the approval of the I-130.
Attorney Serena Siew’s motion to withdraw as counsel is DENIED without
prejudice to its renewal when substitute counsel is identified and appears to replace
her.
PETITION FOR REVIEW DENIED.
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