ARGUETA PORTILLO v. SESSIONS III (2018)

MEMORANDUM **

Roxana Yamileth Argueta-Portillo and Christopher Josue Flores-Argueta, natives and citizens of El Salvador, petition pro se for review of the Board of Immigration Appeals’ order dismissing their appeal from an immigration judge’s order denying their 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. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.

The agency did not abuse its discretion in denying petitioners’ motion to reopen, where they failed to comply with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and any alleged ineffective assistance is not plain on the face of the record. See 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).

We lack jurisdiction to review the agency’s decision not to reopen proceedings sua sponte. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (the court’s jurisdiction to review BIA decisions denying sua sponte reopening is limited to reviewing the reasoning behind the decisions for legal or constitutional error). Petitioners’ contention that the BIA’s sua sponte determination was premised on legal errors is not supported by the record. Id.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.