                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           AUG 05 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSUE BLANCO MALDONADO,                          No. 12-71182

              Petitioner,                        Agency Nos.         A094-802-146
                                                                     A094-802-148
 v.

LORETTA E. LYNCH, Attorney General,              MEMORANDUM*

              Respondent.


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

                        Argued and Submitted July 7, 2016
                              Pasadena, California

Before: VANASKIE,** MURGUIA, and WATFORD, Circuit Judges.

      Josue Blanco Maldonado, a native and citizen of Guatemala, petitions for

review of an order of the Board of Immigration Appeals (“BIA”) that denied his

appeal from a decision of an Immigration Judge (“IJ”) that denied his motion to

reconsider the denial of his motion to reopen. We deny the petition for review.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Thomas I. Vanaskie, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
      Our jurisdiction is governed by 8 U.S.C. § 1252. “We review BIA rulings

on motions to reopen and reconsider for abuse of discretion and reverse only if the

Board acted arbitrarily, irrationally, or contrary to law.” Mohammed v. Gonzales,

400 F.3d 785, 791 (9th Cir. 2005) (citations omitted). The agency did not abuse its

discretion by denying Maldonado’s appeal, where his motion to reconsider failed

to establish any error of law or fact with respect to the denial of the motion to

reopen for his failure to comply with the threshold requirements of Matter of

Lozada, 19 I. & N. Dec. 637 (BIA 1988). See 8 C.F.R. § 1003.23(b)(2).

      “[W]e have dispensed with the Lozada obligations where counsel’s

ineffective assistance was obvious and undisputed on the face of the record.” Reyes

v. Ashcroft, 358 F.3d 592, 597 (9th Cir. 2004) (citations omitted). We have also

held that “the Lozada command is not warranted if [the] petitioner shows ‘diligent

efforts’ to comply were unsuccessful due to factors beyond petitioner’s control.”

Id. (citation omitted). Here, however, Maldonado has not shown that his failure to

comply with the Lozada requirements was due to factors beyond his control.

      The premise for Maldonado’s motion to reopen was that an attorney failed to

file an appeal on his behalf. According to Maldonado, he could not provide

specific evidence to support his ineffective assistance of counsel claim because he

could not remember the name of the attorney who said an appeal would be filed.


                                           2
Maldonado also claimed that his family was unable to assist him in identifying this

attorney because Maldonado was in custody. Notably, however, Maldonado

provides two different accounts regarding his hiring of the unnamed attorney. In

these two accounts, a consistent fact is that the unnamed attorney was

recommended to Maldonado by a known individual, either attorney Gloria Weil-

Herrera or a different Gloria, who was a receptionist at one of the offices that had

worked on Maldonado’s case. Thus, because Maldonado knew who recommended

him to this unnamed attorney, we are hard-pressed to find that Maldonado

displayed diligent efforts to comply with Lozada when Maldonado’s current

attorney–who represented Maldonado during the motion to reopen–could have

simply contacted Weil-Herrera and the other Gloria to get the name of the

unnamed attorney who was allegedly supposed to file Maldonado’s appeal.

      Accordingly, contrary to Maldonado’s contention, the BIA did not abuse its

discretion in finding that ineffective assistance of counsel was not apparent on the

face of the record, where Maldonado failed to provide any information about the

identity of the attorney who allegedly failed to file an appeal to the BIA in his

original proceedings. See Tamang v. Holder, 598 F.3d 1083, 1090-91 (9th Cir.

2010) (finding failure to comply with Lozada was fatal to alien’s ineffective

assistance claim, where ineffectiveness was not plain on the face of the record


                                           3
because alien failed to provide any information regarding former counsel).

      PETITION FOR REVIEW DENIED




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