Dominguez v. Ashcroft

114 F. App'x 824

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 23, 2004
• Docket: No. 02-72764
• Status: Published

Opinion

MEMORANDUM

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Martha Dominguez and her husband Miguel Dominguez, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) decision summarily affirming their appeal from an Immigration Judge’s denial of their motion to reopen cancellation proceedings due to ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review due process challenges de novo and motions to reopen for an abuse of discretion. See Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review.

The BIA properly denied Petitioners’ motion to reopen based on ineffective assistance of counsel because they did not present any additional evidence demonstrating that they qualified for cancellation of removal, and accordingly, failed to show prejudice. See id. at 899; Munoz v. Ashcroft, 339 F.3d 950, 955 (9th Cir.2003).

Because we reach the merits of the ineffective assistance of counsel claim, we decline to review the BIA’s decision to streamline this case. See Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1078 (9th Cir.2004).

Pursuant to Desta v. Ashcroft, 365 F.3d 741 (9th Cir.2004), Petitioners’ motion for stay of removal included a timely request for 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.