Levai v. Ashcroft

114 F. App'x 876

Opinion

MEMORANDUM

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Geza Levai, a native and citizen of Hungary, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen his deportation proceedings due to ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a). Kalaw v. INS, 133 (9th Cir.1997). We review for abuse of discretion, Celis-Castellano v. Ashcroft, 298 F.3d 888, 890 (9th Cir.2002), and we deny the petition for review.

Levai contends that his attorney provided ineffective assistance by failing to timely appeal from the IJ’s denial of his motion to reopen to rescind a deportation order entered in absentia, and failing to file a supplemental application for relief under the Nicaraguan Adjustment and Central American Relief Act (“NACARA”).

The failure to timely appeal did not cause prejudice because Levai cannot show that he was entitled to rescission given that Levai fails to demonstrate “exceptional circumstances” for his failure to appear at his deportation hearing. See Valencias-Fragoso v. INS, 321 F.3d 1204, 1205 (9th Cir.2003) (per curiam) (holding that the alien did not demonstrate “exceptional circumstances” for her failure to appear at her hearing when she was late due to confusion about the hearing time).

Former counsel’s failure to file a NA-CARA application did not cause prejudice because Levai was not eligible for NA-CARA. Levai was not made ineligible for suspension of deportation because of the stop-time rule, and therefore relief under NACARA is unnecessary. See Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 597-98 (9th Cir.2002) (noting that NACARA exempts certain aliens from the stop-time rule).

PETITION FOR REVIEW 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.