Xochihua-Ramirez v. Gonzales

229 F. App'x 607

Opinion

MEMORANDUM

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Arnoldo Xochihua-Ramirez, his wife Herminia Nunez, and their son Aldo Jair Xochihua, all natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order upholding their appeal from the Immigration Judge’s (“IJ”) order denying their motion to reopen proceedings based on ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, see Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we deny the petition for review.

Petitioners’ contention that their current attorney’s failure to file a timely notice of appeal entitles them to a “per se” finding of prejudice is incorrect. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir.2003) (counsel’s failure to perfect appeal deprives petitioner of the appellate process and creates a rebuttable presumption of prejudice). We agree with the BIA’s conclusion that the presumption of prejudice was rebutted because petitioners did not identify any errors in the IJ’s decision, or allege that the outcome of their case might have been different had counsel filed a timely notice of appeal. Id. (presumption of prejudice is rebutted if a petitioner cannot demonstrate plausible grounds for relief).

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.