FILED
NOT FOR PUBLICATION MAY 04 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DOUGLAS M. AGUILAR, No. 10-73337
Petitioner, Agency No. A073-972-998
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
DOUGLAS M. AGUILAR, No. 11-70178
Petitioner, Agency No. A073-972-998
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 10, 2012
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: B. FLETCHER, KLEINFELD, and M. SMITH, Circuit Judges.
The Board of Immigration Appeals (“BIA”) dismissed Douglas Aguilar’s
appeal of a removal order, concluding that it lacked jurisdiction because Aguilar
waived his right to appeal before the immigration judge (“IJ”). The BIA denied
Aguilar’s subsequent motion to reopen or reconsider because Aguilar failed to
comply with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA
1988). Aguilar petitions for review of both BIA decisions. We have jurisdiction
under 8 U.S.C. § 1252.
Aguilar’s argument that the Lozada requirements are invalid because they
were adopted by adjudication rather than rulemaking is without merit. See SEC v.
Chenery Corp., 332 U.S. 194, 203 (1947); City of Anaheim v. Fed. Energy
Regulatory Comm’n, 723 F.2d 656, 659 (9th Cir. 1984). Aguilar made no attempt
to comply with any of the Lozada requirements. Further, it is not “obvious and
undisputed on the face of the record” that Aguilar’s counsel was ineffective. See
Reyes v. Ashcroft, 358 F.3d 592, 597 (9th Cir. 2004). Therefore, the BIA did not
abuse its discretion in denying Aguilar’s motion to reopen on the basis of
ineffective assistance of counsel.
Aguilar’s purported waiver of appeal before the IJ was not “considered and
intelligent.” United States v. Ramos, 623 F.3d 672, 680 (9th Cir. 2010); Biwot v.
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Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005). The IJ failed to “expressly and
personally inform [Aguilar] that he [had] the right to appeal.” United States v.
Ubaldo-Figueroa, 364 F.3d 1042, 1049 (9th Cir. 2004). Aguilar exhausted his
claim that his waiver was not “intelligent” in his motion to reopen.
Although Aguilar did not waive his right to appeal, the BIA did not abuse
its discretion in denying the motion to reopen because Aguilar cannot show that he
had “plausible grounds for relief.” Ramos, 623 F.3d at 684. Because of his
criminal convictions, the only relief for which Aguilar is eligible is deferral of
removal under the Convention Against Torture. The record simply does not
support the conclusion that it is “more likely than not” that Aguilar “will be
tortured at the instigation of, or with the acquiescence of the [Salvadoran]
government” if he is deported. Delgado v. Holder, 648 F.3d 1095, 1108 (9th Cir.
2011) (en banc) (quoting Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008)).
PETITION DENIED.
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