Iniguez-Montes v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 20, 2023
• Docket: 21-446
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED MAR 20 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Eva Iniguez-Montes, No. 21-446

Petitioner, Agency No. A070-917-691

v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General,

Respondent.

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

Submitted March 15, 2023** Pasadena, California

Before: LEE, BRESS, MENDOZA, Circuit Judges.

Petitioner Eva Iniguez-Montes, native and citizen of Mexico, petitions for

review of a Board of Immigration Appeals (“BIA”) order upholding an

Immigration Judge’s (“IJ”) denial of Iniguez-Montes’ Motion to Reopen

Removal Proceedings. Because the BIA affirmed the IJ without opinion, “we

evaluate the IJ’s decision as we would that of the Board.” Lanza v. Ashcroft,

389 F.3d 917, 925 (9th Cir. 2004). We review the denial of a motion to reopen

* 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). for abuse of discretion. Sembiring v. Gonzales, 499 F.3d 981, 985 (9th Cir.

2007). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition

for review.

The agency did not abuse its discretion in concluding that Iniguez-Montes

failed to rebut the presumption of effective service by regular mail. See Mejia-

Hernandez v. Holder, 633 F.3d 818, 822 (9th Cir. 2011). Iniguez-Montes

admits that the Notice to Appear and removal order were mailed to the correct

address. See 8 U.S.C. § 1229a(b)(5)(A) (“The written notice . . . shall be

considered sufficient . . . if provided at the most recent address provided [by the

noncitizen].”). Beyond her unsubstantiated assertion that she did not receive

notice, Iniguez-Montes provided no other evidence indicating non-receipt. The

removal order was not returned to the Immigration Court as undeliverable.

Moreover, the agency did not abuse its discretion in finding Iniguez-

Montes failed to establish an ineffective assistance of counsel claim. Iniguez-

Montes failed to meet the procedural requirements set forth in Matter of

Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988). She did not submit an affidavit

setting forth in detail her agreement with prior counsel, and the record lacks any

evidence that prior counsel was notified of Iniguez-Montes’ allegations. See

Azanor v. Ashcroft, 364 F.3d 1013, 1023 (9th Cir. 2004); Reyes v. Ashcroft, 358

F.3d 592, 598–99 (9th Cir. 2004). Nor did Iniguez-Montes establish that “the

ineffectiveness of counsel was plain on its face.” Guan v. Barr, 925 F.3d 1022,

1033 (9th Cir. 2019) (quoting Tamang v. Holder, 598 F.3d 1083, 1090 (9th Cir.

2 21-446 2010)).

The temporary stay of removal remains in place until the mandate issues.

PETITION DENIED.

3 21-446