Huerta-Lopez v. Holder

333 F. App'x 237

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 28, 2009
• Docket: No. 06-75314
• Status: Published

Opinion

MEMORANDUM

**

Roberto Huerta-Lopez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and review de novo questions of law, including claims of due process violations due to ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.

During proceedings, Huerta-Lopez conceded that he lacked a qualifying relative for purposes of cancellation of removal under 8 U.S.C. § 1229b(b)(l)(D). We agree with the BIA’s conclusion that Huerta-Lopez failed to establish that counsel did not perform with sufficient competence where Huerta-Lopez then withdrew his application for cancellation of removal and waived his right to appeal in favor of a grant of voluntary departure under 8 U.S.C. § 1229c(a). See Mohammed, 400 F.3d at 793 (to prevail on a claim of ineffective assistance of counsel, petitioner must first demonstrate that counsel failed to perform with sufficient competence); see also Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir.2005) (waiver of right to appeal must be “considered and intelligent”).

Huerta-Lopez’s remaining contentions are unpersuasive.

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.