Ibarra Guerrero v. Holder

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 13 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JERONIMO IBARRA GUERRERO; No. 07-74681
MARCELA IBARRA,
Agency Nos. A095-175-965
Petitioners, A095-175-966
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 11, 2011**
Pasadena, California
Before: FERNANDEZ, RYMER, and TALLMAN, Circuit Judges.
Jeronimo Ibarra Guerrero and Marcela Ibarra petition for review of the
Board of Immigration Appeals’ (“BIA”) denial of their motion to reopen. We deny
the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
To the extent we have jurisdiction to review the BIA’s denial of the Ibarras’
motion to reopen, Fernandez v. Gonzales, 439 F.3d 592, 601–602 (9th Cir. 2006);
accord Garcia v. Holder, 621 F.3d 906, 910–11 (9th Cir. 2010), we conclude the
BIA did not abuse its discretion. Singh v. I.N.S., 295 F.3d 1037, 1039 (9th Cir.
2002) (reversal warranted only if BIA denial was “arbitrary, irrational, or contrary
to law”). The BIA considered the evidence proffered by the Ibarras and acted
within its broad discretion to determine it was insufficient to establish prima facie
eligibility for cancellation of removal. See I.N.S. v. Doherty, 502 U.S. 314, 323
(1992) (“The granting of a motion to reopen is . . . discretionary, . . . the Attorney
General has ‘broad discretion’ to grant or deny such motions.” (citations omitted)).
Because the evidence was insufficient to establish prima facie eligibility for
relief, the Ibarras failed to demonstrate the prejudice necessary to support a claim
of ineffective assistance of counsel. Ortiz v. I.N.S., 179 F.3d 1148, 1153 (9th Cir.
1999) (“Due process challenges to deportation proceedings require a showing of
prejudice to succeed.”).
Finally, even assuming the Ibarras’ 60-day voluntary departure period was
stayed or tolled during the pendency of their motion to reopen, compare Nevarez
Nevarez v. Holder, 572 F.3d 605, 610 (9th Cir. 2009), with Dada v. Mukasey, 554
U.S. 1, 21 (2008), it began to run again after their motion was denied. Azarte v.
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Ashcroft, 394 F.3d 1278, 1289 (9th Cir. 2005). It therefore expired before the
Ibarras filed their petition for review and motion to stay with this court.
PETITION FOR REVIEW DENIED.
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