Gamolo v. Holder

FILED
NOT FOR PUBLICATION AUG 30 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ADORA NUDO GAMOLO; et al., No. 08-70711
Petitioners, Agency Nos. A095-298-813
A095-298-814
v. A095-298-815
A095-298-816
ERIC H. HOLDER, Jr., Attorney General,
Respondent. MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 10, 2010 **
Before: O’SCANNLAIN, HAWKINS, and IKUTA, Circuit Judges.
Adora Nudo Gamolo, her husband, and their two children, natives and
citizens of the Philippines, petition for review of the Board of Immigration
Appeals’ (“BIA”) order denying their motion to reconsider. We have jurisdiction
under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
*
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).
reopen or reconsider and review de novo claims of due process violations due to
ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92
(9th Cir. 2005). We deny the petition for review.
Construed as a motion to reconsider, the BIA was within its discretion in
denying petitioners’ motion where the motion failed to identify any error of fact or
law in the BIA’s prior decision denying their motion to reopen. See 8 C.F.R.
§ 1003.2(b)(1).
Construed as a motion to reopen, the BIA did not abuse its discretion by
denying the motion. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (BIA’s
denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational, or
contrary to law”). The BIA properly concluded that petitioners failed to establish
ineffective assistance of counsel, because their attorney’s decision to have them
forego voluntary departure constituted a tactical decision, see Magallanes-Damian
v. INS, 783 F.2d 931, 934 (9th Cir. 1986), and the alleged deficiencies that related
to Gamolo’s employer’s visa petition occurred before petitioners were placed in
proceedings, see Balam-Chuc v. Mukasey, 547 F.3d 1044, 1050 (9th Cir. 2008).
PETITION FOR REVIEW DENIED.
2 08-70711