Jayarathna v. Ashcroft

97 F. App'x 126

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 5, 2004
• Docket: Nos. 03-70116, A78-451-256, A78451-668, A78-451-228
• Status: Published

Opinion

MEMORANDUM

**

Kandalama Jayarathna and relatives petition for review of the decision of the Board of Immigration Appeals (“BIA”) denying their motion to reopen. The BIA dismissed their initial appeal because of petitioners’ failure to file a brief that their attorney had indicated she would file.

In their petition to reopen, petitioners argued the ineffective assistance of their counsel in failing to file a brief. To prevail on a motion to reopen, however, they must establish not only that the representation was deficient, but that the deficiencies affected the outcome of the deportation proceeding. See Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir.1999). Petitioners have failed to show that the outcome would have been any different had they filed a brief; they do not make any showing that they are entitled to the substantive relief they sought. See id.; Mohsseni Behbahani v. INS, 796 F.2d 249, 251 (9th Cir.1986).

Petition for review is DENIED.

This 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.