Aguayo v. Gonzales

Ninth Circuit

Aguayo v. Gonzales

181 F. App'x 641

CourtCourt of Appeals for the Ninth Circuit

DecidedMay 18, 2006

DocketNo. 04-74594

StatusPublished

This text of 181 F. App'x 641 (Aguayo v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Aguayo v. Gonzales, 181 F. App'x 641 (9th Cir. 2006).

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Opinion

MEMORANDUM

**

Carlos Garcia Aguayo, Karla Murillo Beltran, and their two minor children, all natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal for lack of jurisdiction on the ground that they had waived their right to appeal. To the extent we have jurisdiction, it is pursuant to 8 U.S.C. § 1252. Reviewing de novo, U.S. v. Garza-Sanchez, 217 F.3d 806, 808 (9th Cir.2000), we deny in part and dismiss in part the petition for review.

Although it is unclear from the record whether the petitioners’ waiver of appeal was considered and intelligent, the petitioners have not established a violation of due process because they have not demonstrated that any prejudice resulted from the waiver. See U.S. v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir.2004) (alien must show plausible grounds for relief to establish prejudice).

To the extent the petitioners allege ineffective assistance by their former counsel, the claim was not exhausted and we lack jurisdiction to review it. See Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1079 n. 5 (9th Cir.2004). The petitioners’ contention that the BIA’s decision is a “boilerplate” decision is unpersuasive. See Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

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MEMORANDUM

**

Carlos Garcia Aguayo, Karla Murillo Beltran, and their two minor children, all natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal for lack of jurisdiction on the ground that they had waived their right to appeal. To the extent we have jurisdiction, it is pursuant to 8 U.S.C. § 1252. Reviewing de novo, U.S. v. Garza-Sanchez, 217 F.3d 806, 808 (9th Cir.2000), we deny in part and dismiss in part the petition for review.

Although it is unclear from the record whether the petitioners’ waiver of appeal was considered and intelligent, the petitioners have not established a violation of due process because they have not demonstrated that any prejudice resulted from the waiver. See U.S. v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir.2004) (alien must show plausible grounds for relief to establish prejudice).

To the extent the petitioners allege ineffective assistance by their former counsel, the claim was not exhausted and we lack jurisdiction to review it. See Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1079 n. 5 (9th Cir.2004). The petitioners’ contention that the BIA’s decision is a “boilerplate” decision is unpersuasive. See Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

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181 F. App'x 641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aguayo-v-gonzales-ca9-2006.

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