NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS ENRIQUE AMBELIZ, No. 15-71032
Petitioner, Agency No. A072-517-351
v.
MEMORANDUM *
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Carlos Enrique Ambeliz, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) order denying his motion to reopen removal
proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
abuse of discretion the denial of a motion to reopen, and review de novo claims of
due process violations. Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir. 2004).
We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion in denying Ambeliz’s motion to
reopen for failure to comply with Matter of Lozada, 19 I. & N. Dec. 637 (BIA
1988), where any alleged ineffective assistance of counsel for failing to seek
special rule cancellation of removal under the Nicaraguan Adjustment and Central
American Relief Act of 1997 was not plain on the face of the record because the
Ninth Circuit decision determining that a conviction under California Penal Code
§ 273.5(a) is not categorically a crime involving moral turpitude was not issued
until four years after his final order of removal. See Tamang v. Holder, 598 F.3d
1083, 1090-91 (9th Cir. 2010) (failure to satisfy Lozada was fatal to ineffective
assistance of counsel claim where ineffectiveness was not plain on the face of the
record).
Ambeliz failed to establish prejudice resulting from any BIA error in the
mailing of the briefing schedule, where Ambeliz does not challenge the IJ’s
determination that his conviction under California Penal Code § 273.5(a) is an
aggravated felony, which also precludes the relief petitioner seeks. Accordingly,
his due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(to prevail on a due process challenge, an alien must show error and prejudice).
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We lack jurisdiction to consider Ambeliz’s unexhausted collateral attack of
his criminal conviction, and his unexhausted contentions regarding any alleged
ineffective assistance stemming from former counsel’s admission of factual
allegations in the Notice to Appear, the relief sought by former counsel, and former
counsel’s failure to challenge the IJ’s pretermission of relief applications. See
Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (“We lack jurisdiction to
review legal claims not presented in an alien’s administrative proceedings before
the BIA”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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