                                                                            FILED
                            NOT FOR PUBLICATION                              APR 04 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S . CO UR T OF AP PE A LS




                            FOR THE NINTH CIRCUIT

MIGUEL ANGEL AGUALLO,                            No. 06-71785

              Petitioner,                        Agency No. A078-024-559

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

              Respondent.



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

                            Submitted November 3, 2010**
                                Pasadena, California

Before: PREGERSON, RIPPLE,*** and GRABER, Circuit Judges.

       Petitioner Miguel Angel Aguallo, a native and citizen of Belize, petitions for

review of the Board of Immigration Appeals' (þBIAþ) denial of his motion to

reopen following the denial of his application for cancellation of removal for


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
       ***
             The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
failure to meet the hardship requirement set forth in 8 U.S.C. y 1229b(b)(1)(D).

The only issue before the court is the denial of the motion to reopen. Because the

BIA did not commit any legal error or otherwise abuse its discretion, we deny the

petition. See Aguilar Gonzalez v. Muµasey, 534 F.3d 1204, 1208 (9th Cir. 2008)

(holding that we review de novo the BIA's legal determinations); He v. Gonzales,

501 F.3d 1128, 1130-31 (9th Cir. 2007) (þWe review for abuse of discretion the

BIA's denial of a motion to reopen.þ).

      The BIA correctly determined that the standard in 8 C.F.R. y 1003.2(c)(1)

applied to Petitioner's motion to reopen and that the motion to reopen failed to

meet that standard. See Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005)

(explaining that 8 C.F.R. y 1003.2(c)(1) requires that the evidence submitted with a

motion to reopen must not have been available at the time of the former hearing

before the IJ). The BIA did not abuse its discretion by holding, in the alternative,

that the evidence failed to meet the threshold for reopening. See Hernandez-Ortiz

v. INS, 777 F.2d 509, 513 (9th Cir. 1985) (þA prima facie case is established when

an alien presents 'affidavits or other evidentiary material,' which, if true, would

satisfy the requirements for substantive relief.þ (citation omitted)), superceded by

statute on other grounds as stated by Parussimova v. Muµasey, 555 F.3d 734 (9th

Cir. 2009). Finally, the BIA did not abuse its discretion by failing to note that the


                                           2
government had not filed a response to Petitioner's motion. Cf. Konstantinova v.

INS, 195 F.3d 528, 530-31 (9th Cir. 1999) (holding that the BIA may waive

procedural defects in a motion to reopen or remand even if the government does

not affirmatively support or oppose the motion).

      Petition DENIED.1




      1
        We do not reach any issue related to ineffective assistance of counsel,
which is not before us on the present petition.

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                                                                            FILED
Aguallo v. Holder, No. 06-71785                                               APR 04 2011

                                                                         MOLLY C. DWYER, CLERK
                                                                          U .S . CO UR T OF AP PE A LS

PREGERSON, Circuit Judge, dissenting:

      While Aguallo's motion to reopen failed to present evidence previously

unavailable at the time of the merits hearing before the Immigration Judge,

Aguallo may have an ineffective assistance of counsel claim.

      Miguel Angel Aguallo ('Aguallo') has lived in the United States for over

22 years. Aguallo, a native and citizen of Belize, was admitted into the United

States in 1988 on a tourist visa and overstayed his departure date. He is a trained

mechanic, and is highly respected by his co-worµers. Aguallo has four American-

born citizen children, now approximately 15, 14, 12, and 10 years old. Witnesses

have testified to Aguallo's excellent parenting and his active involvement in his

children's education and general welfare. Scores of certificates and report cards

testify to his children's achievements in school.

      Meanwhile, Aguallo's wife, also a native and citizen of Belize without

documents, has been sporadically absent from their household, often leaving for

months at a time. At the time of the hearing before the Immigration Judge,

Aguallo's wife had filed for divorce. Aguallo testified that he would liµely taµe his

children with him to Belize because he did not trust that his wife would be able to



                                          1
care for them. But it is unclear whether his wife would allow him to do so.

      The Immigration Judge found Aguallo ineligible for cancellation of removal

for failing to demonstrate 'exceptional and extremely unusual hardship' to his four

U.S. citizen children, and granted him voluntary departure. The BIA affirmed.

However, Aguallo's inability to establish hardship was not for want of evidence.

The record is scant, but Aguallo's attorney could have provided supportive

affidavits or declarations documenting the recurring absenteeism of Aguallo's wife

and indicating how Aguallo's removal, in combination with his wife's absence and

the lacµ of any reliable person with whom to leave his four children, would create

exceptional hardship to his children. The fact that no such evidence was

introduced speaµs poorly of the quality of representation Aguallo received.

      Moreover, instead of appealing the BIA's decision, Aguallo's attorney filed

a motion to reopen, arguing 'changed country conditions'--an argument normally

reserved for asylum claims. Aguallo's attorney argued that increased crime and a

lacµ of adequate employment and educational opportunities in Belize warranted

reopening his case. But rather than file the 2004 U.S. Department of State Country

Conditions Report for Belize, which was not available at the time of Aguallo's

merits hearing but which was available by the time the motion to reopen was filed,

Aguallo's attorney inexplicably filed the 2003 report, which was available at the


                                         2
time of the hearing and therefore could not be used as the basis for a motion to

reopen.

      Given his attorney's deficient performance, Aguallo may wish to consider

filing a motion to reopen based on a claim of ineffective assistance of counsel. See

Puga v. Chertoff, 488 F.3d 812, 815-816 (9th Cir. 2007) (indicating that ineffective

assistance of counsel claims must be raised in a motion to reopen before the BIA).

Unfortunately, we may review ineffective assistance of counsel claims only after

they are first raised to the BIA. Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th

Cir. 2000). Aguallo was represented by the same attorney in his merits hearing, in

his appeal to the BIA, and in his motion to reopen. Unless his current lawyer

argues her own ineffective assistance, he will be left without recourse. Thus,

Aguallo might also give some thought to seeµing assistance from a pro bono legal

organization or a law school immigration law clinic. In any case, his current

lawyers have done Aguallo a disservice which should not be ignored.

      Aguallo's case is yet another example of the cruelty and coldness of our

immigration laws and the suffering inflicted on innocents. When a parent is denied

cancellation of removal, the government effectively banishes his children from the

only home they µnow, depriving our country of their talents and denying them a

productive future. This de facto expulsion from the country also forces those


                                          3
children to forego their constitutionally protected right to remain in the country of

their birth with their family intact, in violation of due process. See, e.g., Moore v.

City of E. Cleveland, 431 U.S. 494, 503-05 (1977) (plurality opinion) ('Our

decisions establish that the Constitution protects the sanctity of the family precisely

because the institution of the family is deeply rooted in this Nation's history and

tradition.'); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (recognizing that '[t]he

integrity of the family unit has found protection in the Due Process Clause of the

Fourteenth Amendment'). I cannot be a party to such a cruel result.




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