Castellanos-Zuniga v. Gonzales

138 F. App'x 968

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 13, 2005
• Docket: No. 04-72886
• Status: Published

Opinion

MEMORANDUM

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Atanacio Castellanos-Zuniga, his wife Maria Amelia Castellanos and their son Jose Alejandro Castellanos, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) dismissal of their appeal of an immigration judge’s denial of their motion to reopen removal proceedings held in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the BIA’s denial of a motion to reopen for abuse of discretion, Reyes v. Ashcroft, 358 F.3d 592, 595 (9th Cir.2004), and we review due process claims de novo, see id. We deny the petition for review.

The BIA did not abuse its discretion in concluding that petitioners were not entitled to reopening based on ineffective assistance of counsel because petitioners’ motion to reopen did not satisfy the procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), and it is disputed whether petitioners stayed in contact with their attorney so that he could provide them with notice of their hearing. See Reyes, 358 F.3d at 597 (indicating that the Lozada factors are not strictly applied where counsel’s ineffective assistance is obvious and undisputed on the face of the record).

Petitioners’ due process claim fails because they have not shown error. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (“To prevail on a due process challenge to deportation proceedings, [an alien] must show error and substantial prejudice.”).

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.