FILED
NOT FOR PUBLICATION MAR 01 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ALBERTO ZARATE- No. 13-73764
GRANADOS,
Agency No. A079-767-284
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 24, 2016**
Before: LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.
Jose Alberto Zarate-Granados, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen based on ineffective assistance of counsel. Our jurisdiction is governed by
8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
*
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).
reopen, and we review de novo questions of law and constitutional claims. 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 in denying Zarate-Granados’ untimely
motion to reopen, where Zarate-Granados failed to establish prejudice from the
alleged ineffective assistance of his former attorney because he put forth no
evidence showing he has plausible grounds for relief. See Rojas-Garcia v.
Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (requiring prejudice to state a valid
claim of ineffective assistance of counsel, and explaining the presumption of
prejudice for failing to file an appeal brief is rebutted when petitioner does not
show plausible grounds for relief).
We lack jurisdiction to consider Zarate-Granados’ unexhausted contention
regarding his eligibility for voluntary departure and any failings by prior counsel to
properly argue that eligibility before the immigration judge. See Tijani v. Holder,
628 F.3d 1071, 1080 (9th Cir. 2010).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 13-73764