FILED
NOT FOR PUBLICATION
SEP 29 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSALIA ANGELICA RIOS REY, No. 11-73384
Petitioner, Agency No. A076-703-234
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 11, 2015
San Francisco, California
Before: KOZINSKI and TALLMAN, Circuit Judges, and PIERSOL,**
Senior District Judge.
1. Motions to reopen must include evidence that “was not available and
could not have been discovered or presented at the former hearing.” 8 C.F.R.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for the District of South Dakota, sitting by designation.
page 2
§ 1003.2(c)(1). The danger that one of the defendants in the 1997 trial would take
revenge on Rios Rey for her role as a government witness was just as high during
her first removal proceeding as it is now. Yet Rios Rey never mentioned this
concern during her prior removal proceedings. Because Rios Rey failed to present
new evidence that couldn’t have been presented “at [her] former hearing,” the
Board of Immigration Appeals properly denied her motion to reopen.
§ 1003.2(c)(1).
2. Rios Rey declares that she never received any updates regarding her case
after it was administratively closed. These allegations could give rise to an
ineffective-assistance-of-counsel claim, because, if believed, Rios Rey never had
an opportunity during the 2001 and 2002 hearings to present her fear of retaliation
if removed to Mexico. As the Government conceded during oral argument, Rios
Rey could pursue this claim by filing a new motion to reopen by following the
procedure outlined in Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). See
also Correa-Rivera v. Holder, 706 F.3d 1128, 1130–31 (9th Cir. 2013) (describing
the “procedural requirements” for a nonresident to make an IAC claim “established
by the BIA in Matter of Lozada”). We order petitioner’s counsel, Christopher J.
Stender, to deliver a copy of this memorandum disposition to Rios Rey. Counsel
page 3
shall also send confirmation to the Clerk of Court within fourteen days of the
publication of this disposition indicating that petitioner has received the
disposition.
The petition for review is DENIED.