Hak Kim v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2019
• Docket: 17-71403
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HAK BYONG KIM; et al., No. 17-71403

Petitioners, Agency Nos. A098-832-691 A098-847-727 v. A098-847-728 A098-847-729 WILLIAM P. BARR, Attorney General,

Respondent. MEMORANDUM*

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

Submitted February 19, 2019**

Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.

Hak Byong Kim and his family, natives and citizens of Korea, petition for

review of the Board of Immigration Appeals’ (“BIA”) order denying their motion

to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252.

We review for abuse of discretion the denial of a motion to reopen, and we review

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). de novo due process claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th

Cir. 2005). We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion or violate due process in denying

petitioners’ untimely motion to reopen based on ineffective assistance of counsel,

where they filed it six months after the final order of removal. See 8 C.F.R.

§ 1003.2(c)(2). Petitioners contend their attorney, Martin, failed to inform them of

the BIA’s 2016 decision and their right to appeal it; however, they failed to

demonstrate that Martin represented them in that appeal. To the extent petitioners

contend their attorney of record for the 2016 appeal, Redburn, was also ineffective,

they failed to comply with the procedural requirements of Matter of Lozada, 19

I. & N. Dec. 637 (BIA 1988). See Tamang v. Holder, 598 F.3d 1083, 1090-91 (9th

Cir. 2010) (failure to satisfy Matter of Lozada requirements was fatal to ineffective

assistance of counsel claim); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)

(requiring error and substantial prejudice to prevail on a due process challenge).

Petitioners request that we revisit Lara-Torres v. Ashcroft, 383 F.3d 968 (9th

Cir. 2004), but a three-judge panel cannot overrule circuit precedent in the absence

of an intervening decision from a higher court or en banc decision of this court. See

Avagyan v. Holder, 646 F.3d 672, 677 (9th Cir. 2011).

To the extent petitioners seek review of the BIA’s June 2016 order

dismissing their appeal from the immigration judge’s denial of Kim’s adjustment

2 17-71403 of status application, we lack jurisdiction because this petition is not timely as to

that order. See 8 U.S.C. § 1252(b)(1).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 17-71403