FILED
NOT FOR PUBLICATION SEP 30 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GONZALO ESTRADA-RIOS, No. 12-72128
Petitioner, Agency No. A092-922-201
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 24, 2013 **
Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Gonzalo Estrada-Rios, a native and citizen of Mexico, petitions for review of
an order of the Board of Immigration Appeals (“BIA”) denying his motion to
reopen deportation proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252.
We review for abuse of discretion the BIA’s denial of a motion to reopen and
*
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).
review de novo claims of ineffective assistance of counsel. Singh v. Ashcroft,
367 F.3d 1182, 1185 (9th Cir. 2004). We deny in part and dismiss in part the
petition for review.
The BIA did not abuse its discretion by denying Estrada-Rios’s motion to
reopen due to his failure to demonstrate that his former attorney’s untimely filing
of his first petition for review prejudiced the outcome of his deportation
proceedings, where that petition for review presented no plausible grounds for
success on the merits. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir.
2003) (holding that the absence of “plausible grounds for relief” rebuts the
presumption of prejudice); cf. Singh, 367 F.3d at 1190 (stating that the presumption
of prejudice is sustained if the petitioner’s claim “could plausibly succeed on the
merits”).
We lack jurisdiction to consider Estrada-Rios’s challenges to his underlying
order of deportation or the BIA’s August 9, 2011, order denying his first motion to
reopen, because this petition for review is untimely as to those orders. See
Membreno v. Gonzales, 425 F.3d 1227, 1229 (9th Cir. 2005) (en banc).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 12-72128