MENDOZA PEREZ v. BARR (2019)

MEMORANDUM **

Jairo Apitzin Mendoza-Perez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s denial of his motion to reopen removal proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen and review de novo questions of law. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). We deny the petition for review.

The BIA did not err or abuse its discretion in denying Mendoza-Perez’s motion to reopen based on ineffective assistance of counsel for failure to comply with the procedural requirements in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), where he admitted he had not notified either of his attorneys of his allegations against them and afforded them the opportunity to respond. See Correa-Rivera v. Holder, 706 F.3d 1128, 1131-32 (9th Cir. 2013) (an alien alleging ineffective assistance of counsel must, among other requirements, notify his former counsel of the allegations and afford counsel the opportunity to respond).

In light of this disposition, we need not address Mendoza-Perez’s contentions regarding the merits of his ineffective assistance claim. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (the courts and the agency are not required to make findings on issues the decision of which is unnecessary to the results).

Mendoza-Perez’s contention that denying his motion would lead to an unconscionable result is not supported, where the missed opportunity to defend his application for cancellation of removal does not amount to an unconscionable result. Cf. Singh v. INS, 295 F.3d 1037, 1039-40 (9th Cir. 2002) (holding the agency should not deny reopening where denial would lead to the unconscionable result of removing an alien who is eligible for relief; INS conceded alien was eligible for adjustment of status and would not have been ordered deported had he appeared at his hearing).

We are not persuaded that the BIA overlooked meaningful facts. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (“What is required is merely that [the BIA] consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” (citation omitted)).

PETITION FOR REVIEW DENIED.