                                                                           FILED
                              NOT FOR PUBLICATION                           MAY 21 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



DAVID J. CONCHA,                                 No. 04-75337

             Petitioner,                         Agency No. A073-959-672

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,

             Respondent.



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

                           Argued and Submitted May 3, 2010
                                  Pasadena, California

Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and LEFKOW, **
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

       **   The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
      David J. Concha petitions for review of the Board of Immigration Appeals’

(“BIA”) decision affirming without opinion an immigration judge’s denial of his

untimely motion to reopen deportation proceedings. We have jurisdiction pursuant

to 8 U.S.C. § 1252, and we deny the petition for review.

      We GRANT the request for judicial notice of the 2007 approval of the Form

I-130 Petition for Alien Relative filed on Concha’s behalf by his mother, a

naturalized U.S. citizen. However, our review of agency action is generally limited

to issues first raised in administrative proceedings below. See Barron v. Ashcroft,

358 F.3d 674, 678 (9th Cir. 2004). The I-130 was approved several years after the

BIA issued its decision, and is, therefore, not relevant to our review of the denial of

the motion to reopen.

      We review the BIA’s denial of a motion to reopen for abuse of discretion.

Reyes v. Ashcroft, 358 F.3d 592, 595 (9th Cir. 2004). The BIA did not abuse its

discretion in denying Concha’s motion to reopen for failure to comply with the

requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988),

where Concha failed to provide an affidavit describing his agreement with counsel

and failed to file a state bar complaint or explain why such a complaint was not

filed. See Reyes, 358 F.3d at 596 (quoting Lata v. INS, 204 F.3d 1241, 1246 (9th

Cir. 2000)). Nor was ineffective assistance of counsel plain on the face of the


                                           2
record, excusing compliance with Matter of Lozada. See id. at 597–98. An

unfortunate result is insufficient to demonstrate “obvious and undisputed”

ineffective assistance of counsel. See id. at 597. Concha has consistently failed to

point to any evidence in the record supporting his claim of ineffective assistance of

counsel at his original immigration hearing in 1996. Therefore, the petition for

review is DENIED without prejudice to Concha’s ability to pursue any remedies

that may now be available due to the approval of the I-130.

       Attorney Serena Siew’s motion to withdraw as counsel is DENIED without

prejudice to its renewal when substitute counsel is identified and appears to replace

her.

       PETITION FOR REVIEW DENIED.




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