Ceballos De Zavala v. Holder

FILED NOT FOR PUBLICATION NOV 30 2009 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T O F AP PE ALS FOR THE NINTH CIRCUIT MARIA CEBALLOS DE ZAVALA, No. 07-70516 Petitioner, Agency No. A074-426-893 v. MEMORANDUM * ERIC H. HOLDER Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 17, 2009 ** Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges. Maria Ceballos De Zavala, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen based on ineffective assistance of counsel. We have jurisdiction pursuant * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). RB/Research to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and de novo claims of due process violations, including claims of ineffective assistance of counsel in immigration proceedings. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review. The BIA correctly determined that Ceballos De Zavala did not meet the requirements for asserting an ineffective assistance of counsel claim set forth in Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 824 (9th Cir. 2003). Both Ceballos De Zavala’s notification to former counsel and bar complaint did not include critical details of his alleged ineffective assistance, rendering counsel unable to meaningfully respond to the allegations against him. See Reyes v. Ashcroft, 358 F.3d 592, 594, 598-99 (9th Cir. 2004) (emphasizing the importance of notifying counsel, and providing a meaningful opportunity to respond). Contrary to Ceballos De Zavala’s contention, the alleged ineffective assistance is not plain on the face of the record. Cf. Castillo-Perez v. INS, 212 F.3d 518, 526-27 (9th Cir. 2000). The BIA therefore acted within its discretion in denying the motion. PETITION FOR REVIEW DENIED. RB/Research 2 07-70516