Cisneros Lopez v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 24, 2025
• Docket: 23-2298
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 24 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN CISNEROS LOPEZ, No. 23-2298 Agency No. Petitioner, A076-666-114 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 13, 2025 Pasadena, California

Before: PAEZ, TALLMAN, and R. NELSON, Circuit Judges.

After the Board of Immigration Appeals (BIA) affirmed the denial of Juan

Cisneros Lopez’s claims for asylum, withholding of removal, and protection under

the Convention Against Torture (CAT), Cisneros Lopez’s counsel failed to file a

timely petition for review. To reset the deadline to file a petition, Cisneros Lopez

claimed ineffective assistance of counsel and asked the BIA to reopen his removal

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. proceedings and reissue its decision. The BIA declined. Cisneros Lopez petitions

for review of that decision. We have jurisdiction under 8 U.S.C. § 1252(a), and we

review the BIA’s decision for an abuse of discretion. Martinez-Hernandez v.

Holder, 778 F.3d 1086, 1088 (9th Cir. 2015) (per curiam). We deny the petition.

1. The BIA denied Cisneros Lopez’s motion because he failed to show

that his asylum, withholding, and CAT claims are plausible. That was not an abuse

of discretion. To show ineffective assistance of counsel, Cisneros Lopez must

establish that his counsel acted deficiently and that the deficiency may have affected

the outcome of the proceedings. Rojas-Garcia v. Ashcroft, 339 F.3d 814, 824, 826

(9th Cir. 2003). “[A]t a minimum,” that means that Cisneros Lopez must

demonstrate that his claims for relief are “plausible.” Martinez-Hernandez, 778 F.3d

at 1088.

Because his counsel’s error prevented him from filing a timely petition for

review, prejudice is presumed. See Dearinger ex rel. Volkova v. Reno, 232 F.3d

1042, 1045 (9th Cir. 2000). The BIA invoked that presumption. But, as the BIA

also noted, the presumption is rebuttable. We have held that, notwithstanding the

presumption, petitioners still must show that their claims for relief are plausible.

Rojas-Garcia, 339 F.3d at 826–28; Siong v. INS, 376 F.3d 1030, 1038 (9th Cir.

2004); Dearinger, 232 F.3d at 1046. The BIA did not abuse its discretion by

requiring Cisneros Lopez to do the same.

2 23-2298 2. Arguing otherwise, Cisneros Lopez suggests that the BIA may deny

reopening only on grounds authorized by statute or caselaw. He also argues that,

because he sought reopening “to restart” a deadline rather than “to relitigate” claims,

the BIA should not have required a showing of plausibility.

Yet, subject to certain restrictions, the decision to grant or deny a motion to

reopen is committed to the BIA’s discretion. 8 C.F.R. § 1003.2(a). Unless a

regulation, statute, or the Constitution dictates otherwise, the BIA may decide which

circumstances warrant reopening. See INS v. Jong Ha Wang, 450 U.S. 139, 143 n.5

(1981). We may review only whether the BIA acted “arbitrarily, irrationally, or

contrary to law.” Martinez-Hernandez, 778 F.3d at 1088. Requiring Cisneros Lopez

to show plausible grounds for relief was not arbitrary, irrational, or contrary to law.

PETITION DENIED.1

1 The temporary stay of removal shall dissolve when the mandate issues. Cisneros Lopez’s motion to stay removal, Dkt. 4, is otherwise denied.

3 23-2298