Hernandez-Samayoa v. Ashcroft

119 F. App'x 71

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 15, 2004
• Docket: No. 02-71694; Agency No. A28-810-015
• Status: Published

Opinion

MEMORANDUM

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Agapito Hernandez-Samayoa, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of the immigration judge’s (“IJ”) denial of his motion to reopen deportation proceedings so that he could apply for suspension of deportation pursuant to the Nicaraguan Adjustment and Central American Relief Act (“NACARA”). We have jurisdiction under 8 U.S.C. § 1105a(a). Kalaw v. INS, 133 F.3d 1147, 1149-50 (9th Cir.1997). We review the denial of a motion to reopen for abuse of discretion. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). We deny the petition for review.

The agency did not abuse its discretion when it denied petitioner’s motion to reopen because he failed even to allege before the IJ that he had applied for asylum, much less offer any evidence to establish that he had applied for asylum prior to April 1, 1990. See 8 C.F.R. § 1003.43(b), (d)(3), (e)(1) (NACARA suspension relief eligibility requires that Guatemalan national establish that he or she applied for asylum in the United States prior to April 1,1990).

Petitioner’s contention that the BIA’s summary affirmance procedure was inconsistent with due process is foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845, 848—49 (9th Cir.2003).

Petitioner was represented by now-disbarred attorney Miguel D. Gadda. The record indicates that Gadda’s representation was unsatisfactory in several respects. Gadda belatedly offered a document indicating that petitioner attempted to apply for asylum in November 1988 in Texas. Because the agency has not had an opportunity to consider this evidence, we stay the issuance of the mandate for 90 days from the date of this disposition to allow petitioner the opportunity to file a motion to reopen with the BIA regarding the ineffective assistance of his former counsel.

PETITION FOR REVIEW DENIED; MANDATE STAYED FOR 90 DAYS.

xliiS 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.