Ibarra Guerrero v. Holder

Ninth Circuit

Ibarra Guerrero v. Holder

442 F. App'x 321

CourtCourt of Appeals for the Ninth Circuit

DecidedJuly 13, 2011

Docket07-74681

StatusUnpublished

This text of 442 F. App'x 321 (Ibarra Guerrero v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ibarra Guerrero v. Holder, 442 F. App'x 321 (9th Cir. 2011).

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Opinion

MEMORANDUM **

Jeronimo Ibarra Guerrero and Marcela Ibarra petition for review of the Board of Immigration Appeals’ (“BIA”) denial of their motion to reopen. We deny the petition.

To the extent we have jurisdiction to review the BIA’s denial of the Ibarras’ motion to reopen, Fernandez v. Gonzales, 439 F.3d 592, 601-602 (9th Cir.2006); accord Garcia v. Holder, 621 F.3d 906, 910-11 (9th Cir.2010), we conclude the BIA did not abuse its discretion. Singh v. I.N.S., 295 F.3d 1037, 1039 (9th Cir.2002) (reversal warranted only if BIA denial was “arbitrary, irrational, or contrary to law”). The BIA considered the evidence proffered by the Ibarras and acted within its broad discretion to determine it was insufficient to establish prima facie eligibility for cancellation of removal. See I.N.S. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (“The granting of a motion to reopen is ... discretionary, ... the Attorney General has ‘broad discretion’ to grant or deny such motions.” (citations omitted)).

Because the evidence was insufficient to establish prima facie eligibility for relief, the Ibarras failed to demonstrate the prejudice necessary to support a claim of ineffective assistance of counsel. Ortiz v. I.N.S., 179 F.3d 1148, 1153 (9th Cir.1999) (“Due process challenges to deportation proceedings require a showing of prejudice to succeed.”).

Finally, even assuming the Ibarras’ 60-day voluntary departure period was stayed or tolled during the pendency of their motion to reopen, compare Nevarez Nevarez v. Holder, 572 F.3d 605, 610 (9th Cir.2009), with Dada v. Mukasey, 554 U.S. 1, 21, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008), it began to run again after their motion was denied. Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir.2005). It therefore expired before the Ibarras filed their petition for review and motion to stay with this court.

PETITION FOR REVIEW DENIED.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM **

Jeronimo Ibarra Guerrero and Marcela Ibarra petition for review of the Board of Immigration Appeals’ (“BIA”) denial of their motion to reopen. We deny the petition.

To the extent we have jurisdiction to review the BIA’s denial of the Ibarras’ motion to reopen, Fernandez v. Gonzales, 439 F.3d 592, 601-602 (9th Cir.2006); accord Garcia v. Holder, 621 F.3d 906, 910-11 (9th Cir.2010), we conclude the BIA did not abuse its discretion. Singh v. I.N.S., 295 F.3d 1037, 1039 (9th Cir.2002) (reversal warranted only if BIA denial was “arbitrary, irrational, or contrary to law”). The BIA considered the evidence proffered by the Ibarras and acted within its broad discretion to determine it was insufficient to establish prima facie eligibility for cancellation of removal. See I.N.S. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (“The granting of a motion to reopen is ... discretionary, ... the Attorney General has ‘broad discretion’ to grant or deny such motions.” (citations omitted)).

Because the evidence was insufficient to establish prima facie eligibility for relief, the Ibarras failed to demonstrate the prejudice necessary to support a claim of ineffective assistance of counsel. Ortiz v. I.N.S., 179 F.3d 1148, 1153 (9th Cir.1999) (“Due process challenges to deportation proceedings require a showing of prejudice to succeed.”).

Finally, even assuming the Ibarras’ 60-day voluntary departure period was stayed or tolled during the pendency of their motion to reopen, compare Nevarez Nevarez v. Holder, 572 F.3d 605, 610 (9th Cir.2009), with Dada v. Mukasey, 554 U.S. 1, 21, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008), it began to run again after their motion was denied. Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir.2005). It therefore expired before the Ibarras filed their petition for review and motion to stay with this court.

PETITION FOR REVIEW DENIED.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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442 F. App'x 321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ibarra-guerrero-v-holder-ca9-2011.

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