NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 26 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORENA LOPEZ ESPINOZA, No. 16-72037
Petitioner, Agency No. A092-768-489
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 3, 2020
Pasadena, California
Before: W. FLETCHER and LEE, Circuit Judges, and AMON,** District Judge.
Petitioner Lorena Lopez Espinoza (“Lopez Espinoza”) petitions for review of
the Board of Immigration Appeals (“BIA”) decision affirming the immigration
judge’s (“IJ’s”) denial of her motion to reopen her removal proceedings. The basis
of her motion was her claim that her attorney provided ineffective assistance of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
counsel at her 1997 removal proceeding. We have jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(1), and we deny the petition for review.
This Court reviews the denial of a motion to reopen for abuse of discretion.
Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir. 2000). Where, as here, the
BIA has adopted the reasoning of the IJ pursuant to Matter of Burbano in addition
to providing its own review of the evidence and law, this Court reviews both the IJ
and BIA decisions. Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011). Legal
questions are reviewed de novo and factual findings are reviewed for substantial
evidence. Id. at 1028–29.
To prevail on a motion to reopen removal proceedings based on ineffective
assistance of counsel, the alien must show “that counsel failed to perform with
sufficient competence,” and that she “was prejudiced by . . . counsel’s performance.”
Kwong v. Holder, 671 F.3d 872, 880 (9th Cir. 2011) (alterations omitted) (quoting
Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004)). Lopez Espinoza has
shown neither.
Counsel did not provide incompetent assistance by conceding Lopez
Espinoza’s ineligibility for cancellation of removal relief under 8 U.S.C. § 1229b(a),
Immigration and Nationality Act (“INA”) § 240A(a), during her original removal
proceeding because she was not eligible for such relief. Section 240A(a) provides:
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The Attorney General may cancel removal in the case of
an alien who is inadmissible or deportable from the United
States if the alien—
(1) has been an alien lawfully admitted for permanent
residence for not less than 5 years,
(2) has resided in the United States continuously for 7
years after having been admitted in any status, and
(3) has not been convicted of any aggravated felony.
8 U.S.C. § 1229b(a), INA § 240A(a). As noted by the IJ, Lopez Espinoza obtained
lawful permanent resident status on March 3, 1993, at the earliest and she was
ordered removed to Mexico on December 15, 1997. See 8 C.F.R. § 1001.1(p) (LPR
status “terminates upon entry of a final administrative order of exclusion,
deportation, removal, or rescission.”). She therefore had not accrued five years of
LPR status by the time she applied for cancellation of removal relief.1
Lopez Espinoza has also failed to show prejudice. The IJ found that Lopez
Espinoza was “excludable as charged” and noted that “eligibility for Cancellation of
Removal certainly could not have changed the outcome of that decision.” Because
the IJ would not have granted Lopez Espinoza the requested cancellation of removal
relief even if she had been eligible for it, she cannot establish any prejudice from
1
On June 6, 2020, Lopez Espinoza filed a letter pursuant to Federal Rule of
Appellate Procedure 28(j). The letter is improper, as it makes a new argument and
provides citations that were available at the time the brief was filed. See Fed. R.
App. Proc. 28(j); United States v. LaPierre, 998 F.2d 1460, 1466 n.5 (9th Cir. 1993)
(“[A] letter submitted pursuant to rule 28(j) cannot raise a new issue.”).
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former counsel’s performance, and her motion to reopen was properly denied.
Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (noting that “[t]he BIA can
deny a motion to reopen on any one of ‘at least’ three independent grounds”).
The petition for review is accordingly DENIED.
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