Raul Pineda Landin v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 15 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RAUL PINEDA LANDIN and BLANCA No. 14-72430 LILIA PINEDA, Agency Nos. A079-537-071 Petitioners, A079-537-072 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 7, 2018 Pasadena, California Before: TALLMAN and NGUYEN, Circuit Judges, and BENNETT,** District Judge. Raul Pineda Landin and Blanca Lilia Pineda (“the Pinedas”), citizens of Mexico who are married to each other, petition for review of a Board of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa, sitting by designation. Immigration Appeals’ (BIA) decision denying their second motion to reopen their removal proceedings. The Pinedas argue that the BIA abused its discretion by denying their motion to reopen, which alleged both ineffective assistance of counsel by the attorney that represented them in their removal proceedings and changed country conditions relevant to the asylum claim withdrawn by their ineffective counsel. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we grant in part and deny in part. 1. The BIA did not abuse its discretion by denying the Pinedas’ motion to reopen on the basis of changed country conditions. A motion to reopen to apply, or reapply, for asylum and related relief “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing,” may be filed at any time and is not subject to the one-motion numerical limit. 8 C.F.R. § 1003.2(c)(3)(ii); 8 U.S.C. § 1229a(c)(7)(C)(ii). The “critical question” in such motions “is not whether the allegations bear some connection to a prior application, but rather whether the circumstances have changed sufficiently that a petitioner who previously did not have a legitimate claim for asylum now has a well-founded fear of future persecution.” Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004). The BIA’s conclusion that the Pinedas proffered evidence was quantitatively, but not 2 qualitatively, different from the evidence that would have been submitted with their original asylum application was not an abuse of discretion. See Najmabadi v. Holder, 597 F.3d 983, 991 (9th Cir. 2010) (“[S]ubstantial evidence supports the Board’s finding that the evidence [petitioner] submitted in her motion to reopen was not qualitatively different from the evidence presented at the original hearing.”). 2. The BIA denied the Pinedas’ motion to reopen on the basis of ineffective assistance of counsel because of the failure to show prejudice. See Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir. 2003) (“To show a deprivation of due process caused by ineffective assistance of counsel, the alien must show that ...

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