Miguel Valverde-Martinez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 24, 2021
• Docket: 20-72058
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 24 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MIGUEL ANGEL VALVERDE- No. 20-72058 MARTINEZ, Agency No. A099-630-178 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 17, 2021** San Francisco, California

Before: SCHROEDER, W. FLETCHER, and MILLER, Circuit Judges.

Petitioner Miguel Valverde-Martinez petitions for review of the denial of his

motion to reconsider the denial of his motion to reopen and reinstate his appeal

before the Board of Immigration Appeals. The immigration judge originally

* 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). denied Valverde-Martinez’s request for withholding of removal and Convention

Against Torture (CAT) protection on a number of grounds, including (1) failure to

establish membership in a particular social group that either was legally cognizable

or bore a nexus to any harm that he suffered or fears, (2) failure to esablish that the

government of Mexico was or would be unable or unwilling to control his alleged

persecutors, (3) failure to establish past harm rising to the level of persecution, and

(4) the reasonableness of expecting him to relocate within Mexico to avoid the

harm that he fears.

Valverde-Martinez filed a notice of appeal from that decision but failed to

file a brief with the Board of Immigration Appeals. The Board summarily

dismissed the appeal. See 8 C.F.R. § 1003.1(d)(2)(i)(A) (allowing for summary

dismissal if a party fails to specify the reasons for the appeal). Valverde-Martinez

then filed a motion to reopen his appeal based on ineffective assistance of counsel.

The Board denied that motion to reopen because it failed to show that Valverde-

Martinez had a plausible ground for withholding of removal or CAT protection.

See Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015).

Valverde-Martinez then filed a motion to reconsider the Board’s denial of his

motion to reopen, but the Board denied reconsideration because the motion largely

repeated the claims made in the motion to reopen and failed to identify any alleged

2 legal or factual errors, a change in law, or an aspect of the case that was overlooked

in the motion to reopen or in the underlying decision of the immigration judge.

We review for an abuse of discretion and affirm. See Valeriano v. Gonzales,

474 F.3d 669, 672 (9th Cir. 2007). The Board acted within its discretion in

denying Valverde-Martinez’s motion to reconsider its prior decision denying his

motion to reopen. Valverde-Martinez failed to identify any “errors of law or fact

in” the Board’s denial of his motion to reopen. 8 U.S.C. § 1229a(c)(6)(C). To

establish ineffective assistance of counsel, Valverde-Martinez was required to

show not only that his counsel’s performance in failing to file an appellate brief

was deficient, but that the failure may have affected the outcome. See Martinez-

Hernandez, 778 F.3d at 1088; Flores v. Barr, 930 F.3d 1082, 1087 (9th Cir. 2019).

Valverde-Martinez never explained how an appeal could have produced a different

result.

The petition for review is DENIED.