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Diaz v. Mukasey

United States Court of Appeals, Ninth Circuit
Aug 5, 2008
288 F. App'x 424 (9th Cir. 2008)

Opinion

No. 04-73280.

Argued and Submitted June 11, 2008.

Filed August 5, 2008.

Martin Avila Robles, Immigration Practice Group A Professional Corporation, San Francisco, CA, for Petitioner.

Ronald E. Lefevre, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Ari Nazarov, Jennifer A. Parker, Julie Pfluger, U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A72-O09-744.

Before: SCHROEDER, LEAVY, and WALKER, Circuit Judges.

The Honorable John M. Walker, Jr., Senior United States Circuit Judge for the Second Circuit, sitting by designation.


MEMORANDUM

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


Ericelda Idolina Rodas Diaz, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals' ("BIA") order dismissing her appeal from an immigration judge's ("IJ") order denying her motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, see Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir. 1999), and we dismiss in part and deny in part the petition for review.

We lack jurisdiction to consider Diaz's contention that the IJ misinformed her concerning asylum application requirements because Diaz did not raise this issue before the BIA and therefore failed to exhaust her administrative remedies. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

Because Diaz did not present any new, material evidence, the facts of which were not available to her at the time she decided to withdraw her application for asylum, the agency did not abuse its discretion when it denied her motion to reopen. See 8 C.F.R. §§ 1003.2(c)(3)(ii), 1003.23(b)(3); Chang Hua He v. Gonzales, 501 F.3d 1128, 1131-33 (9th Cir. 2007).

Because Diaz failed to comply with the requirements as set forth in Matter of Lozada, 19 I. N. Dec. 637 (BIA 1988), and the alleged ineffective assistance of counsel is not clear on the face of the administrative record, the agency also did not abuse its discretion in denying Diaz's motion to reopen based on ineffective assistance of counsel. See Reyes v. Ashcroft, 358 F.3d 592, 598-99 (9th Cir. 2004).

PETITION FOR REVIEW DISMISSED in part; DENIED in part.


Summaries of

Diaz v. Mukasey

United States Court of Appeals, Ninth Circuit
Aug 5, 2008
288 F. App'x 424 (9th Cir. 2008)
Case details for

Diaz v. Mukasey

Case Details

Full title:Ericelda Idolina Rodas DIAZ, Petitioner, v. Michael B. MUKASEY, Attorney…

Court:United States Court of Appeals, Ninth Circuit

Date published: Aug 5, 2008

Citations

288 F. App'x 424 (9th Cir. 2008)