Oscar Alarcon-Cuevas v. Matthew Whitaker

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OSCAR ALARCON-CUEVAS, No. 15-70108

Petitioner, Agency No. A087-958-928

v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Submitted December 17, 2018**

Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.

Oscar Alarcon-Cuevas, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen

removal proceedings and reissue its previous decision reinstating his voluntary

departure period. We have jurisdiction under 8 U.S.C. § 1252. We review for

* 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). abuse of discretion the denial of a motion to reopen and reissue. Hernandez-

Velasquez v. Holder, 611 F.3d 1073, 1077 (9th Cir. 2010). We deny the petition for

review.

The BIA did not abuse its discretion in denying as untimely Alarcon-

Cuevas’s motion to reopen based on ineffective assistance of counsel, where he

filed it 18 months after his final order of removal, and he failed to comply with the

procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See

8 C.F.R. § 1003.2(c)(2); Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011) (listing

requirements for equitable tolling on account of ineffective assistance of counsel);

Tamang v. Holder, 598 F.3d 1083, 1090-91 (9th Cir. 2010) (failure to satisfy

Matter of Lozada requirements was fatal to ineffective assistance of counsel claim

where ineffectiveness was not plain on the face of the record).

Alarcon-Cuevas has not shown that the BIA abused its discretion in

declining to reissue its December 12, 2012, order, where the sole basis for his

reissuance request was to reinstate his voluntary departure period, and he does not

challenge the BIA’s determination that it lacked authority to do so. See Corro-

Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) (failure to contest

issue in opening brief resulted in waiver); cf. Singh v. Napolitano, 649 F.3d 899,

901 (9th Cir. 2011) (the BIA has reissued decisions where an alien has shown lack

of notice of the decision).

2 15-70108 In light of this disposition, we do not reach Alarcon-Cuevas’s remaining

contentions regarding ineffective assistance of counsel.

PETITION FOR REVIEW DENIED.

3 15-70108