Munive v. Gonzales

135 F. App'x 957

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 22, 2005
• Docket: Nos. 04-71149, A73-939-368
• Status: Published

Opinion

MEMORANDUM

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Bulmaro Amaro Munive, a putative native and citizen of Guatemala, petitions for review of an order of the Board of Immigration Appeals (“BIA”) adopting and affirming the decision of an immigration judge denying his motion to reopen proceedings in which he was ordered deported in absentia. Because the transitional rules apply, we have jurisdiction under former 8 U.S.C. § 1105a(a). See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222-23 (9th Cir.2002). We review for abuse of discretion the denial of a motion to reopen, Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002), and we deny the petition for review.

The record supports the conclusion that Munive received both his Order to Show Cause and his hearing notice because proof of delivery by certified mail creates a strong presumption of effective service, and Munive offered no evidence to rebut that presumption. See id. To the extent Munive relies on ineffective assistance of counsel (“IAC”) as an “exceptional circumstance” warranting rescission of his deportation order, his claim fails because he did not comply with the threshold procedural requirements for claiming IAC. See Reyes v. Ashcroft, 358 F.3d 592, 596-97 (9th Cir.2004).

We find no abuse of discretion in the BIA’s rejection of Munive’s belated argument that his deportation order designates the wrong country. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (explaining circumstances under which courts must defer to agency’s interpretation of controlling statutes).

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.