Camacho Garcia v. Ashcroft

117 F. App'x 609

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 20, 2004
• Docket: No. 03-73128, A75-692-916
• Status: Published

Opinion

MEMORANDUM

**

Ruben Camacho Garcia, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming an immigration judge’s (“I J”) denial of his application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. Where the BIA reviews the IJ’s decision de novo, our review is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted. See Shah v. INS, 220 F.3d 1062, 1067 (9th Cir.2000). We review de novo due process challenges, Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791 (9th Cir.2003), and we deny the petition for review.

Assuming arguendo that the IJ erred in denying Camacho Garcia a continuance when his counsel failed to appear at his hearing, and that the counsel’s failure to appear constituted ineffective assistance of counsel, the BIA properly determined that Camacho Garcia was not prejudiced, because his daughter took the stand and testified to the hardship removal would cause. See Iturribarria v. INS, 321 F.3d 889, 901-03 (9th Cir.2003). Accordingly, Camacho Garcia fails to demonstrate how the alleged violation affected the outcome of the proceedings. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000).

Pursuant to Desta v. Ashcroft, 365 F.3d 741, 749-50 (9th Cir.2004), Camacho Garcia’s motion for stay of removal included a timely request for a stay of voluntary departure. Because the stay of removal was continued based on the government’s filing of a notice of non-opposition, the voluntary departure period was also stayed, nunc pro tunc, as of the filing of the motion for stay of removal and this stay will expire upon issuance of the mandate.

PETITION FOR REVIEW DENIED.

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.