NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR ALEJANDRO CASTILLO- No. 13-70720
SALDANA, AKA Francisco Lopez,
Agency No. A205-315-289
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 19, 2021**
Before: SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.
Hector Alejandro Castillo-Saldana, a native and citizen of Mexico, petitions
for review of the Board of Immigration Appeals’ order dismissing his appeal from
an immigration judge’s (“IJ”) decision denying his application for cancellation of
removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
*
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).
questions of law, including claims of due process violations due to ineffective
assistance of counsel, and we review for abuse of discretion the BIA’s denial of a
motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).
We deny in part and dismiss in part the petition for review.
The BIA did not err or violate Castillo-Saldana’s right to due process in
applying the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637
(BIA 1988), to Castillo-Saldana’s ineffective assistance of counsel claim. See
Correa-Rivera v. Holder, 706 F.3d 1128, 1130-31 (9th Cir. 2013) (where petitioner
improperly used an appeal to the BIA as the vehicle to allege ineffective assistance
of counsel, the appeal was effectively a motion to reopen); Lata v. INS, 204 F.3d
1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process challenge).
The BIA did not abuse its discretion in declining to reopen based on ineffective
assistance of counsel where Castillo-Saldana failed to comply with Lozada and
where the alleged ineffectiveness was not plain on the face of the record. See
Tamang v. Holder, 598 F.3d 1083, 1089-91 (9th Cir. 2010) (holding that failure to
satisfy Matter of Lozada requirements was fatal to an ineffective assistance of
counsel claim where ineffectiveness was not plain on the face of the record);
Mohammed, 400 F.3d at 791 (explaining that BIA ruling on a motion to reopen
will be reversed “only if the Board acted arbitrarily, irrationally, or contrary to
law”).
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The BIA also did not err or violate Castillo-Saldana’s right to due process in
denying his ineffective assistance of counsel claim where Castillo-Saldana failed to
establish prejudice from the alleged ineffective assistance of former counsel. See
Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (to prevail on an
ineffective assistance of counsel claim a petitioner must demonstrate prejudice);
Lata, 204 F.3d at 1246; see also Pereida v. Wilkinson, 141 S.Ct. 754, 766 (2021)
(an applicant for relief from removal cannot establish eligibility where a conviction
record is inconclusive as to which elements of a divisible statute formed the
offense).
We lack jurisdiction to consider Castillo-Saldana’s contention that the IJ
failed to advise him of his eligibility for relief. See Barron v. Ashcroft, 358 F.3d
674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented
to the agency).
The stay of removal remains in place until the issuance of the mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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