Mendoza v. Ashcroft

120 F. App'x 84

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 13, 2005
• Docket: No. 03-73021
• Status: Published

Opinion

MEMORANDUM

**

Luis Mauricio Mendoza, a native and citizen of El Salvador, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) denying his second motion to reopen his in absentia deportation proceedings. We have jurisdiction under former 8 U.S.C. § 1105a. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). We review the BIA’s denial of Mendoza’s motion to reopen for abuse of discretion. Hernandez-Vivas v. INS, 23 F.3d 1557, 1560 (9th Cir.1994). We deny the petition for review.

The BIA properly concluded that Mendoza failed to demonstrate “reasonable cause” for failing to appear at his February 3, 1986 deportation hearing, as required by the former 8 U.S.C. § 1252(b). See Hernandez-Vivas, 23 F.3d at 1559-60 (this court reviews de novo the BIA’s construction of former § 1252(b)’s “reasonable cause” requirement). Mendoza concedes that his counsel Digna L. Aguirre received oral notice of this hearing. Thus, Mendoza received proper notice. Cf. Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir.2000) (per curiam) (written notice of hearing on alien’s attorney satisfies due process because “It is a longstanding principle that in ‘our legal system of representative litigation ... each party is ... considered to have ‘notice of all facts, notice of which can be charged upon the attorney.’ ”) (citations omitted).

Furthermore, the BIA did not abuse its discretion in concluding that Mendoza’s ineffective assistance of counsel claim against counsel Aguirre was not based upon evidence that “was not available and could not have been discovered or presented at the former hearing,” as required by former 8 C.F.R. § 3.2. See generally Iturribarria v. INS, 321 F.3d 889, 896-903 (9th Cir.2003) (applying former 8 to motion to reopen premised on ineffective assistance of counsel claim).

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.