                FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

MARIANO GRANADOS-OSEGUERA,               No. 03-73030
                     Petitioner,
                                           Agency No.
              v.
                                         A091-692-353
MICHAEL B. MUKASEY, Attorney
                                          ORDER AND
General,
                                            OPINION
                    Respondent.
                                   
        On Petition for Review of an Order of the
             Board of Immigration Appeals

                 Argued and Submitted
        February 17, 2006—Pasadena, California

                  Filed October 7, 2008

    Before: Betty B. Fletcher, A. Wallace Tashima, and
          Consuelo M. Callahan, Circuit Judges.

                   Per Curiam Opinion




                          14257
14260          GRANADOS-OSEGUERA v. MUKASEY


                         COUNSEL

Mary Beth Canty, Laura Boyle, Josh Chetwynd, Law Stu-
dents, Tucson, Arizona, argued the case for the petitioner;
Willie M. Jordan-Curtis, Ph.D., J.D., Esq., Assistant Dean for
Student Affairs and Associate Clinical Professor of Law, The
University of Arizona, Rogers College of Law, Pro Bono
Appellate Project, Tucson, Arizona, was on the briefs for the
petitioner.

Arthur L. Rabin, Department of Justice, Washington, D.C.,
argued the case for the respondent; Peter D. Keisler, Assistant
Attorney General, Michelle Gorden Latour, Assistant Direc-
tor, Linda S. Wendtland, Assistant Director, and Cindy S. Fer-
rier, Senior Litigation Counsel, Washington, D.C., were on
the briefs for the respondent.


                           ORDER

   The opinion, published at 464 F.3d 993, is WITHDRAWN.
It may not be cited as precedent by or to this court or any dis-
trict court of the Ninth Circuit.


                          OPINION

PER CURIAM:

  On September 25, 2006 we granted Oseguera’s petition to
remand his case to the Board of Immigration Appeals (“BIA”)
                 GRANADOS-OSEGUERA v. MUKASEY            14261
in order to re-evaluate his motion to reopen in light of his
ineffective assistance of counsel claim. See Granados-
Oseguera v. Gonzales, 464 F.3d 993 (9th Cir. 2006). Upon
discovering that this opinion had relied on an incomplete
administrative record tendered by the Government in this
appeal, we granted the Government’s Petition for Rehearing
on October 31, 2007. After careful reconsideration, we now
withdraw our prior opinion and deny Oseguera’s petition to
reopen.

   To reach this conclusion we must resolve two issues. First,
did the denial, on abandonment grounds, of Oseguera’s I-140
petition render this appeal moot? Second, assuming his appeal
presented a live controversy, did the BIA abuse its discretion
by denying Oseguera’s motion to reopen? We conclude that
the appeal is not moot, but that there was no abuse of discre-
tion in the BIA’s denial because Oseguera overstayed his vol-
untary departure period and was therefore statutorily barred
from the requested relief.

I.    FACTS AND PROCEDURAL HISTORY

   Oseguera entered the United States on or around June 6,
1984. He sought asylum in August 1993, although that appli-
cation was later abandoned in lieu of a request for cancella-
tion of removal. Oseguera’s cancellation of removal
application was delayed several times due to his prior coun-
sel’s failure to submit a complete application. The immigra-
tion judge (“IJ”) ultimately denied the requested relief on the
grounds that Oseguera did not satisfy the “extreme hardship”
requirement.

     A.   Proceedings before the BIA.

   The BIA summarily affirmed the IJ on September 6, 2002,
but granted Oseguera permission to voluntarily depart “within
30 days of the date of this order or any extension beyond that
time as may be granted by the district director.” Pursuant to
14262             GRANADOS-OSEGUERA v. MUKASEY
Immigration and Nationality Act regulations, Oseguera was
required to file any motion to reopen before his period for
voluntary departure expired (which was, in his case, October
6, 2002). See 8 U.S.C. § 1229c(d)(1).

   Oseguera eventually filed a motion to reopen on December
6, 2002—sixty two days after the voluntary departure period
had expired. Oseguera asked the BIA to excuse the untimely
filing on the grounds that “exceptional circumstances”—
illnesses of his daughter and father—delayed a timely filing.
Oseguera also urged that he was prima facie eligible for relief
from his removal order, because his employer had submitted
an I-140 Alien Employment Certification on his behalf. In a
supplement to the motion, Oseguera’s counsel also repre-
sented that she had “approached the Service” to seek an
extension of his voluntary departure time.1 Oseguera’s supple-
ment also included Oseguera’s I-140 Immigrant Petition for
Alien Worker; that application was later rejected as aban-
doned on August 24, 2004.

   On July 23, 2003 the BIA denied Oseguera’s motion to
reopen on three separate grounds. First, the BIA rejected
Oseguera’s “exceptional circumstances” claim, because
amendments to the INA had withdrawn the “exceptional cir-
cumstances” exception to the bar on availability of discretion-
ary relief in cases where a petitioner has overstayed his
voluntary departure period. See Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (“IIRIRA”), Sec-
tion 240(b). Second, the BIA observed that Oseguera’s coun-
sel had sought an extension of the voluntary departure period
from the wrong entity, and so there was no other basis to per-
mit the otherwise untimely filing. Third, the BIA reasoned
that even if the application were timely, Oseguera had failed
  1
   Although the record is not clear as to the specific entity from whom the
extension was sought, INA regulations give the District Director exclusive
authority to grant an extension of the voluntary removal period. See 8
C.F.R. § 240.25(c).
                GRANADOS-OSEGUERA v. MUKASEY               14263
to make the necessary showing of prima facie eligibility for
relief because he did not submit an I-485 Application for
Adjustment of Status along with his motion to reopen. It is
of that order—in its complete form—that Oseguera now seeks
review.

   In our prior opinion, the majority voted to remand Osegu-
era’s petition to the BIA for the purpose of re-evaluating his
motion to reopen in light of his ineffective assistance of coun-
sel claim. 446 F.3d at 999. However, it was later discovered
that there was a materially incomplete administrative record
originally submitted with this petition for review. Specifi-
cally, a critical page of the BIA’s July 23, 2003 order denying
Oseguera’s motion to reopen was omitted from the record. In
light of this omission—which undercut the panel’s rationale
for resolving the appeal—rehearing was granted. The panel
ordered supplemental briefing, which was completed on April
29, 2008.

  B.   Arguments and additional information submitted
       in supplemental briefing.

   Oseguera’s primary argument on appeal is, once again, that
but for ineffective assistance of counsel the BIA might have
reached a different outcome on the motion to reopen his
removal proceedings. Oseguera contends that his prior coun-
sel was ineffective due to her failure to file an I-140 Immi-
grant Petition for Alien Worker earlier in the proceedings, and
her accompanying failure to file an I-485 application with his
motion to reopen. Oseguera acknowledges that, even assum-
ing his motion to reopen had been complete, the BIA was sta-
tutorily barred from providing any discretionary relief as a
result of his failure to file before the deadline for voluntary
departure had passed. Id. at 22. Oseguera nonetheless con-
tends that if this court provides relief on the ineffective assis-
tance of counsel claim, on remand the BIA could potentially
find that his overstay of the voluntary departure period was
14264          GRANADOS-OSEGUERA v. MUKASEY
the product of his counsel’s reassurance that the overstay
would be excused.

   The Government has supplemented the record by submit-
ting an August 25, 2004 notice from the Department of
Homeland Security (“DHS”) indicating that the I-140 Alien
Worker Petition submitted on Oseguera’s behalf was denied
as abandoned. In its Supplemental Brief, the Government
asserts that the abandonment of the I-140 Petition—which is
one part of the documentation necessary for Oseguera to gain
any relief even if his removal proceedings were reopened—
renders Oseguera’s appeal moot. Oseguera responded by fil-
ing a Motion for Modification of the Record that included an
affidavit from his former employer, Bert Hansen, who indi-
cated that he was never informed by Oseguera’s prior counsel
of the need for any action on the abandoned application, and
confirmed a willingness to file a new I-140 application once
this appeal is resolved. On March 27, 2008 the panel granted
the Motion for Modification. Thus, the BIA’s complete July
23, 2003 Order, the August 25, 2004 DHS notice of abandon-
ment, and the Hansen affidavit were all before the panel on
this rehearing.

II.    ANALYSIS

  We review the denial of a motion to reopen removal pro-
ceedings for abuse of discretion. Hernandez v. Mukasey, 524
F.3d 1014, 1017 (9th Cir. 2008). Questions of law, as well as
due process claims, are reviewed de novo. Id.

  A.    Oseguera’s Appeal is Not Rendered Moot by the
        Abandonment of his I-140 Application.

   [1] This court has an obligation to determine whether a case
presents a live controversy, and is precluded from entering
judgment in an appeal that has been rendered moot. See
Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1128-29
(9th Cir. 2005) (en banc) (“For a case to fall within the
                GRANADOS-OSEGUERA v. MUKASEY               14265
parameters of our limited judicial power, it is not enough that
there may have been a live controversy when the case was
decided by the court whose judgment we are reviewing.
Rather, Article III requires that a live controversy persist
throughout all stages of the litigation.”) (internal quotation
marks and citation omitted). A live controversy requires: (1)
the existence of an injury in fact, (2) a fairly traceable connec-
tion between the injury and the challenged action of the
defendant, and (3) a likelihood that a favorable decision will
redress the claimed injury. Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 189
(2000). The party claiming mootness “has the heavy burden
of establishing that there is no effective relief remaining for
[us] to provide.” Seven Words LLC v. Network Solutions, 260
F.3d 1089, 1095 (9th Cir. 2001) (internal citation omitted);
see also Adarand Constructors, Inc. v. Slater, 528 U.S. 216,
224 (2000) (per curiam) (“It is no small matter to deprive a
litigant of the rewards of its efforts . . . Such action on
grounds of mootness would be justified only if it were abso-
lutely clear that the litigant no longer had any need of the
judicial protection that is sought.”) (emphasis added).

   Relying on a line of authority addressing mootness in cases
concerning the licensing of businesses, the Government
argues that the August 25, 2004 notice of abandonment from
DHS renders this appeal moot. See City News & Novelty, Inc.
v. City of Waukesha, 531 U.S. 278 (2001); San Lazaro Ass’n,
Inc. v. Connell, 286 F.3d 1088, 1096 (9th Cir. 2002). How-
ever, this line of authority is inapposite and insufficient to
carry the argument successfully that Oseguera’s appeal is
moot.

   [2] Initially, Oseguera’s appeal is distinct from the business
licensing cases in that those cases involve the party-in-interest
voluntarily agreeing to forego the particular benefit that they
contend some form of state action has denied them. City
News, 531 U.S. at 281 (petitioner voluntarily withdrawing
renewal license for adult business alleged to have been
14266             GRANADOS-OSEGUERA v. MUKASEY
improperly withheld in violation of the First Amendment);
San Lazaro, 286 F.3d at 1096 (plaintiff voluntarily cancelling
its license to operate as a Medicaid provider). Here, there is
no question that the actions that purport to render the case
moot were not undertaken by Oseguera. Indeed, it is impre-
cise even to argue, as the Government does, that the DHS let-
ter shows that Oseguera’s employer “abandoned” his I-140
petition. What that letter actually reflects is an administrative
determination by the DHS that it has denied the application
because the agency itself has deemed it abandoned.2 The
agency denial of the I-140 Petition is an additional fact that
bears on whether the panel should deny Oseguera’s underly-
ing petition seeking relief from the BIA order denying
reopening. But simply because the Government is able to ten-
der facts to show that it will prevail on the merits does not
mean that the Petition has been rendered moot. There is still
a live controversy between the Government and Oseguera as
to whether he may gain any relief from the BIA’s July 23,
2003 order.

  [3] In sum, the Government has not carried its “heavy bur-
den” of showing that it is “absolutely clear” that Oseguera no
longer has a cognizable legal interest in the outcome of this
Petition.

  B.    The BIA’s ruling was not an abuse of discretion.

   We now address whether the BIA abused its discretion by
denying Oseguera’s motion to reopen. On rehearing, Osegu-
era reiterates many of the same ineffective assistance of coun-
sel arguments presented earlier in this petition for review. Due
  2
   The material that Oseguera submitted to modify the record proves the
point. The Hansen affidavit does not reveal any intention to “abandon” the
prior I-140 application. Thus, while it may have been proper for the
agency to deny the application based on a determination that it had been
abandoned for purposes of compliance with agency regulation, that is not
equivalent to a voluntary withdrawal of the request for relief.
                GRANADOS-OSEGUERA v. MUKASEY               14267
to the statutory bar against discretionary relief in cases where
the petitioner has overstayed the period for voluntary depar-
ture, however, the court cannot grant him relief.

   [4] There is no dispute that Oseguera’s motion to reopen
was filed after the period for voluntary departure had elapsed.
Accordingly, the BIA was not simply correct to deny the
motion; it was compelled to do so by the operation of 8
U.S.C. § 1229c(d)(1) (“if an alien is permitted to depart vol-
untarily under this section and voluntarily fails to depart the
United States within the time period specified, the alien . . .
shall be ineligible, for a period of 10 years, to receive any fur-
ther relief under this section and sections 1229b, 1255, 1258,
and 1259 of this title.”); see also Dada v. Mukasey, 128 S. Ct.
2307, 2318 (2008) (“Alternatively, if the alien wishes to pur-
sue reopening and remains in the United States to do so, he
or she risks expiration of the statutory period and ineligibility
for adjustment of status, the underlying relief sought.”) (citing
8 U.S.C. § 1229c(d)(1)).

   [5] Moreover, as the complete record indicates, the BIA
was precluded from hearing Oseguera’s arguments that were
premised on “exceptional circumstances,” because the
IIRIRA amendments to the immigration statutes removed any
ability to rely on “exceptional circumstances” in cases where
the petitioner has overstayed the voluntary departure period.
See Serrano v. Gonzales, 469 F.3d 1317, 1319 (9th Cir. 2006)
(“In his motion to reopen, Petitioner sought to excuse his fail-
ure to depart based on ‘exceptional circumstances.’ Congress
eliminated the ‘exceptional circumstance’ justification when
it passed the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996. Compare 8 U.S.C. § 1229c(d)
(2006) with id. § 1252b(e)(2)(A) (repealed 1996).”). Like-
wise, Oseguera’s inability to establish eligibility for relief at
the time he filed his motion to reopen is an independent and
sufficient ground for the BIA’s denial of the motion. See
Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869-70 (9th Cir.
2003) (“prima facie eligibility for the relief sought is a prereq-
14268           GRANADOS-OSEGUERA v. MUKASEY
uisite for the granting of a motion to reopen”). Thus, the
BIA’s denial of the motion to reopen was appropriate on all
of the grounds stated in its complete order.

   [6] Oseguera counters that both the failure to file a timely
motion to reopen and his incomplete application were the
result of his prior counsel’s ineffectiveness. Even assuming
that Oseguera’s allegations amount to ineffective assistance of
counsel, the statutory bars on relief would nonetheless control
the disposition of his appeal. Prior to the IIRIRA amend-
ments, a failure to timely voluntary depart due to counsel’s
ineffectiveness had been treated as an “exceptional circum-
stance.” See Varela v. INS, 204 F.3d 1237, 1240 n.6 (9th Cir.
2000) (“Varela’s failure to depart the United States by a vol-
untary departure deadline—ordinarily a bar to adjustment of
status—may be excused in ‘exceptional circumstances.’ ”).
Oseguera points to no authority that would permit an ineffec-
tive assistance of counsel claim to trump the statutory prohibi-
tion on “exceptional circumstance” arguments in cases where
the voluntary departure period has passed. Moreover, because
the IIRIRA amendments withdraw the “exceptional circum-
stances” avenue for relief, there is no prejudice to Oseguera
resulting from the alleged ineffective assistance. See Lara-
Torres v. Ashcroft, 383 F.3d 968, 973 (9th Cir. 2004) (to pre-
vail on a due process claim founded on ineffective assistance
of counsel, petitioner must demonstrate “ ‘substantial preju-
dice’ ” resulting from the ineffectiveness). Put differently, the
BIA could not have granted Oseguera relief, so there was no
prejudice resulting from the alleged ineffective assistance.
Finally, because the I-140 Petition was deemed abandoned, on
remand all that the BIA could plausibly accomplish is issu-
ance of a redundant statement that Oseguera still has not dem-
onstrated prima facie eligibility for any discretionary relief.

III.    CONCLUSION

  For the reasons stated above, we withdraw our prior opin-
ion and DENY the petition for review.
