Avila-Carrasco v. Gonzales

128 F. App'x 655

Opinions

MEMORANDUM

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Moisés Avila-Carrasco, a citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen his removal proceedings in order to reconsider his application for cancellation of removal or, in the alternative, voluntary departure.

We lack jurisdiction to review Avila’s claim that the BIA erred in finding that he had not established that removal would impose “exceptional and extremely unusual hardship” on his two children. See Romero-Torres v. Ashcroft, 327 F.3d 887, 888 (9th Cir.2003). Accordingly, we dismiss the petition insofar as it seeks review of that finding and the concomitant denial of cancellation of removal.

We have jurisdiction under 8 U.S.C. § 1252 over Avila’s claim that the BIA abused its discretion in denying his motion to reopen because of ineffective assistance of counsel. We review the BIA’s ruling on a motion to reopen for abuse of discretion. See Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir.2004). We review the BIA’s findings of fact regarding counsel’s performance for substantial evidence. See id. at 1024.

Avila and his counsel failed to present certain testimony and evidence at his removal hearing that could have been helpful to his claim. Avila blames his former attorney for that failure and submitted an affidavit to the BIA implying that she had inadequately prepared for the removal hearing. The attorney submitted a significantly more detailed affidavit in response, describing her representation of Avila and stating that Avila himself was responsible for his lack of preparation and unwillingness to provide necessary documentation. Thus, the key dispute is about whose account is accurate.

The BIA’s decision addressed that question, stating that “[biased on our review of the record, including former counsel’s affidavit, we find that the respondent has not established that the deficiencies in the record were due to the representation he received from counsel.” Nor was there any error by the BIA in failing to mention Avila’s own affidavit. The BIA is not required to mention every piece of evidence it considers. It simply must “indicate with specificity that it heard and considered petitioner’s claims.” Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004). The BIA did that here, and accordingly we deny the petition as to the denial of the motion to reopen.

PETITION DISMISSED IN PART AND DENIED 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 Ninth Circuit Rule 36-3.