Jose Lopez-Garcia v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 2 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE ANTONIO LOPEZ-GARCIA, No. 14-72453 Petitioner, Agency No. A200-898-337 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted September 26, 2017** Before: SILVERMAN, TALLMAN, and N. R. SMITH, Circuit Judges. Jose Antonio Lopez-Garcia, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from the immigration judge’s decision denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the * 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). denial of a motion to reopen and review de novo questions of law. Chuen Piu Kwong v. Holder, 671 F.3d 872, 880 (9th Cir. 2011). We deny the petition for review. As to Lopez-Garcia’s contentions regarding ineffective assistance of counsel, the agency did not err in denying Lopez-Garcia’s motion to reopen where he failed to comply with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and any ineffective assistance was not plain on the face of the record, see Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir. 2000); see also Reyes v. Ashcroft, 358 F.3d 592, 597 (9th Cir. 2004) (ineffective assistance of counsel claim failed where petitioner did not submit a personal affidavit outlining his agreement with his former attorney and describing the attorney’s alleged misconduct, and there was no evidence petitioner’s former attorney had been notified of his ineffective assistance allegations). As to Lopez-Garcia’s remaining contentions, the agency did not abuse its discretion in denying his motion to reopen where he failed to set forth evidence that was material and not available and could not have been discovered or presented at Lopez-Garcia’s former immigration hearing. See 8 C.F.R. § 1003.2(c)(1); Goel v. Gonzales, 490 F.3d 735, 738 (9th Cir. 2007) (“If [the 2 14-72453 evidence sought to be offered] was available or capable of being discovered at [the former hearing], it cannot provide a basis for reopening.”) (citation omitted). PETITION FOR REVIEW DENIED. 3 14-72453 14-72453 Court of Appeals for the Ninth Circuit ca9 9th Cir. Jose Lopez-Garcia v. Jefferson Sessions 2 October 2017 Agency Unpublished d1e64bd6f1c4f3d260ddb24ab72d3a3a1bb9233c

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