FILED
NOT FOR PUBLICATION APR 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA NANCY REYNOSO AVILA, No. 10-70796
Petitioner, Agency No. A095-297-277
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 8, 2014**
Pasadena, California
Before: BRIGHT,*** FARRIS, and HURWITZ, Circuit Judges.
Maria Nancy Reynoso-Avila petitions for review of the BIA’s denial of her
motion to reopen her removal proceedings. We have jurisdiction under 8 U.S.C.
*
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).
***
The Honorable Myron H. Bright, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
§ 1252, see Alcala v. Holder, 563 F.3d 1009, 1014 (9th Cir. 2009), and review for
abuse of discretion, Delgado-Ortiz v. Holder, 600 F.3d 1148, 1150 (9th Cir. 2010)
(per curiam). We deny the petition.
Reynoso-Avila’s motion to reopen would normally have been number- and
time-barred: it was her second motion to reopen, and was filed far more than 90
days after the BIA dismissed her appeal of the IJ’s removal order. 8 C.F.R.
§ 1003.2(c)(2). Although the pertinent regulation sets out several exceptions to the
numerical and time limitations, none apply here. See id. § 1003.2(c)(3).
Reynoso-Avila contends that the limitations should be equitably tolled since
she was denied due process by her attorney’s ineffective assistance in failing to
assert a claim for withholding of removal. See Ray v. Gonzales, 439 F.3d 582, 590
(9th Cir. 2006). This argument fails: even if her counsel performed deficiently,
Reynoso-Avila did not suffer prejudice. See Ahmed v. Mukasey, 548 F.3d 768, 771
(9th Cir. 2008).
Counsel’s performance could not have affected the outcome of the
proceedings since Reynoso-Avila has not shown plausible grounds for relief on her
claim for withholding of removal. See Alcala v. Holder, 563 F.3d 1009, 1020 (9th
Cir. 2009). Although Reynoso-Avila argues that she suffered persecution in
Mexico based on her membership in the group of “defenseless children in a
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household who were severely abused both physically and emotionally by a
controlling and overbearing parent,” this group does not qualify as a “particular
social group” under the Immigration and Nationality Act. 8 U.S.C.
§ 1231(b)(3)(A); see also 8 C.F.R. § 1208.16; Tamang v. Holder, 598 F.3d 1083,
1091 (9th Cir. 2010). The characteristic of being a child in an abusive household is
neither immutable, nor “so fundamental to the identities or consciences of [the
group’s] members that they . . . should not be required to change it.” Donchev v.
Mukasey, 553 F.3d 1206, 1215 (9th Cir. 2009).
Reynoso-Avila presents this Court with an alternative formulation of her
social group: “Maria and the female siblings of her family who were also abused
by their mother.” However, Reynoso-Avila did not argue to the BIA that she was
persecuted on account of her membership in this group. Thus, this Court lacks
jurisdiction to consider the issue. See Vargas v. U.S. Dep't of Immigration &
Naturalization, 831 F.2d 906, 907-08 (9th Cir. 1987).
Finally, although Reynoso-Avila argues that she would be entitled to
withholding of removal on humanitarian grounds, this issue was also not raised to
the BIA. Thus, we lack jurisdiction to consider it. See id.
PETITION FOR REVIEW DENIED.
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