Lino Murillo-Avendano v. Eric Holder, Jr.

598 F. App'x 538

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 18, 2015
• Docket: 11-72819
• Status: Unpublished

Opinion

MEMORANDUM ***

Petitioner appeals two decisions from the Board of Immigration Appeals (BIA), dated September 7, 2011 and February 5, 2013. The decisions denied four motions filed by petitioner — two motions to reopen petitioner’s 1999 removal proceeding, and two motions to reissue a prior BIA decision dated November 8, 2010. Both motions to reopen were number-barred because petitioner had previously filed a motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A). The two motions to reopen were also time-barred because petitioner filed them approximately a decade after his initial order of removal became final. See 8 U.S.C. § 1229a(c)(7)(C).

After we dismissed petitioner’s initial appeal from the November 8, 2010 decision (because it was eight days late), Order, No. 10-73846 (9th Cir. April 20, 2011), petitioner made the motions to reissue referred to above, arguing that his failure to file a timely appeal was due to the ineffective assistance of counsel. While this “created a presumption that [petitioner] was prejudiced because his counsel’s mistake deprived him of a[n] [] appeal,” this presumption is not conclusive. Rojas-Garcia v. Ashcroft, 339 F.3d 814, 827 (9th Cir.2003) (referencing Dearinger ex rel. v. Reno, 232 F.3d 1042, 1045 (9th Cir.2000)). Instead, it may be rebutted by a showing that petitioner alleged “no plausible grounds for relief.” Id. at 827. We are satisfied that there are no plausible grounds that would have entitled petitioner to-relief on appeal from the BIA’s November 8, 2010 decision.

AFFIRMED.

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