Xiangdao Cui v. Ashcroft

115 F. App'x 407

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 16, 2004
• Docket: No. 03-74204
• Status: Published

Opinion

MEMORANDUM

**

Xiangdao Cui, a native and citizen of China, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings due to ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we deny the petition for review.

The BIA properly denied the Petitioner’s motion to reopen because it did not satisfy the procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and it was not clear from the record that Petitioner’s former attorney received the BIA’s merits decision and then failed to file a timely petition for review. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.2002) (indicating that the Lozada factors are not strictly applied where a claim for ineffective assistance of counsel is apparent from the record).

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.