                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 04 2012

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




                            FOR THE NINTH CIRCUIT



DOUGLAS M. AGUILAR,                              No. 10-73337

              Petitioner,                        Agency No. A073-972-998

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

              Respondent.



DOUGLAS M. AGUILAR,                              No. 11-70178

              Petitioner,                        Agency No. A073-972-998

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                       Argued and Submitted April 10, 2012
                              Pasadena, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: B. FLETCHER, KLEINFELD, and M. SMITH, Circuit Judges.

      The Board of Immigration Appeals (“BIA”) dismissed Douglas Aguilar’s

appeal of a removal order, concluding that it lacked jurisdiction because Aguilar

waived his right to appeal before the immigration judge (“IJ”). The BIA denied

Aguilar’s subsequent motion to reopen or reconsider because Aguilar failed to

comply with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA

1988). Aguilar petitions for review of both BIA decisions. We have jurisdiction

under 8 U.S.C. § 1252.

      Aguilar’s argument that the Lozada requirements are invalid because they

were adopted by adjudication rather than rulemaking is without merit. See SEC v.

Chenery Corp., 332 U.S. 194, 203 (1947); City of Anaheim v. Fed. Energy

Regulatory Comm’n, 723 F.2d 656, 659 (9th Cir. 1984). Aguilar made no attempt

to comply with any of the Lozada requirements. Further, it is not “obvious and

undisputed on the face of the record” that Aguilar’s counsel was ineffective. See

Reyes v. Ashcroft, 358 F.3d 592, 597 (9th Cir. 2004). Therefore, the BIA did not

abuse its discretion in denying Aguilar’s motion to reopen on the basis of

ineffective assistance of counsel.

      Aguilar’s purported waiver of appeal before the IJ was not “considered and

intelligent.” United States v. Ramos, 623 F.3d 672, 680 (9th Cir. 2010); Biwot v.


                                         2
Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005). The IJ failed to “expressly and

personally inform [Aguilar] that he [had] the right to appeal.” United States v.

Ubaldo-Figueroa, 364 F.3d 1042, 1049 (9th Cir. 2004). Aguilar exhausted his

claim that his waiver was not “intelligent” in his motion to reopen.

       Although Aguilar did not waive his right to appeal, the BIA did not abuse

its discretion in denying the motion to reopen because Aguilar cannot show that he

had “plausible grounds for relief.” Ramos, 623 F.3d at 684. Because of his

criminal convictions, the only relief for which Aguilar is eligible is deferral of

removal under the Convention Against Torture. The record simply does not

support the conclusion that it is “more likely than not” that Aguilar “will be

tortured at the instigation of, or with the acquiescence of the [Salvadoran]

government” if he is deported. Delgado v. Holder, 648 F.3d 1095, 1108 (9th Cir.

2011) (en banc) (quoting Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008)).

      PETITION DENIED.




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