Yolver Estrada-Mendoza v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 15, 2020
• Docket: 18-70563
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 15 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YOLVER ESTRADA-MENDOZA, AKA No. 18-70563 Yolber Mendoza Estrada, Agency No. A087-749-566 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted April 7, 2020**

Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges.

Yolver Estrada-Mendoza, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order (i) dismissing his

appeal from an immigration judge’s (“IJ”) decision denying cancellation of

removal, and (ii) denying his motion to remand. We have jurisdiction under 8

* 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). U.S.C. § 1252. We review for abuse of discretion the decision to deem an

application abandoned and the denial of a motion to remand. Taggar v. Holder,

736 F.3d 886, 889 (9th Cir. 2013). We deny the petition for review.

The agency did not abuse its discretion in deeming Estrada-Mendoza’s

application for cancellation of removal abandoned, where he did not file the

application by the deadline imposed by the IJ. See 8 C.F.R. § 1003.31(c) (“If an

application or document is not filed within the time set by the Immigration Judge,

the opportunity to file that application or document shall be deemed waived.”);

Taggar, 736 F.3d at 890. To the extent Estrada-Mendoza contends that ineffective

assistance of counsel excuses his failure to timely file the application, he did not

meet the threshold requirements for establishing ineffective assistance of counsel

set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See Reyes v.

Ashcroft, 358 F.3d 592, 598-99 (9th Cir. 2004) (upholding BIA’s denial of a

motion for failure to comply with the Lozada requirements).

The BIA did not abuse its discretion in denying Estrada-Mendoza’s motion

to remand, where he has not established prima facie eligibility for cancellation of

removal. See 8 U.S.C. § 1229b(b)(1); Najmabadi v. Holder, 597 F.3d 983, 986

(9th Cir. 2010) (BIA may deny motion to reopen for failure to establish prima facie

eligibility for relief).

PETITION FOR REVIEW DENIED.

2 18-70563