                                                                           FILED
                            NOT FOR PUBLICATION                            APR 16 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MARIA NANCY REYNOSO AVILA,                       No. 10-70796

              Petitioner,                        Agency No. A095-297-277

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

              Respondent.


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

                             Submitted April 8, 2014**
                               Pasadena, California

Before: BRIGHT,*** FARRIS, and HURWITZ, Circuit Judges.

       Maria Nancy Reynoso-Avila petitions for review of the BIA’s denial of her

motion to reopen her removal proceedings. We have jurisdiction under 8 U.S.C.



        *
             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. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Myron H. Bright, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
§ 1252, see Alcala v. Holder, 563 F.3d 1009, 1014 (9th Cir. 2009), and review for

abuse of discretion, Delgado-Ortiz v. Holder, 600 F.3d 1148, 1150 (9th Cir. 2010)

(per curiam). We deny the petition.

      Reynoso-Avila’s motion to reopen would normally have been number- and

time-barred: it was her second motion to reopen, and was filed far more than 90

days after the BIA dismissed her appeal of the IJ’s removal order. 8 C.F.R.

§ 1003.2(c)(2). Although the pertinent regulation sets out several exceptions to the

numerical and time limitations, none apply here. See id. § 1003.2(c)(3).

      Reynoso-Avila contends that the limitations should be equitably tolled since

she was denied due process by her attorney’s ineffective assistance in failing to

assert a claim for withholding of removal. See Ray v. Gonzales, 439 F.3d 582, 590

(9th Cir. 2006). This argument fails: even if her counsel performed deficiently,

Reynoso-Avila did not suffer prejudice. See Ahmed v. Mukasey, 548 F.3d 768, 771

(9th Cir. 2008).

      Counsel’s performance could not have affected the outcome of the

proceedings since Reynoso-Avila has not shown plausible grounds for relief on her

claim for withholding of removal. See Alcala v. Holder, 563 F.3d 1009, 1020 (9th

Cir. 2009). Although Reynoso-Avila argues that she suffered persecution in

Mexico based on her membership in the group of “defenseless children in a


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household who were severely abused both physically and emotionally by a

controlling and overbearing parent,” this group does not qualify as a “particular

social group” under the Immigration and Nationality Act. 8 U.S.C.

§ 1231(b)(3)(A); see also 8 C.F.R. § 1208.16; Tamang v. Holder, 598 F.3d 1083,

1091 (9th Cir. 2010). The characteristic of being a child in an abusive household is

neither immutable, nor “so fundamental to the identities or consciences of [the

group’s] members that they . . . should not be required to change it.” Donchev v.

Mukasey, 553 F.3d 1206, 1215 (9th Cir. 2009).

      Reynoso-Avila presents this Court with an alternative formulation of her

social group: “Maria and the female siblings of her family who were also abused

by their mother.” However, Reynoso-Avila did not argue to the BIA that she was

persecuted on account of her membership in this group. Thus, this Court lacks

jurisdiction to consider the issue. See Vargas v. U.S. Dep't of Immigration &

Naturalization, 831 F.2d 906, 907-08 (9th Cir. 1987).

      Finally, although Reynoso-Avila argues that she would be entitled to

withholding of removal on humanitarian grounds, this issue was also not raised to

the BIA. Thus, we lack jurisdiction to consider it. See id.

      PETITION FOR REVIEW DENIED.




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