                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            SEP 29 2015
                   UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ROSALIA ANGELICA RIOS REY,                       No. 11-73384

              Petitioner,                        Agency No. A076-703-234

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney
General,

              Respondent.


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

                      Argued and Submitted August 11, 2015
                            San Francisco, California

Before:       KOZINSKI and TALLMAN, Circuit Judges, and PIERSOL,**
              Senior District Judge.

      1. Motions to reopen must include evidence that “was not available and

could not have been discovered or presented at the former hearing.” 8 C.F.R.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for the District of South Dakota, sitting by designation.
                                                                                page 2
§ 1003.2(c)(1). The danger that one of the defendants in the 1997 trial would take

revenge on Rios Rey for her role as a government witness was just as high during

her first removal proceeding as it is now. Yet Rios Rey never mentioned this

concern during her prior removal proceedings. Because Rios Rey failed to present

new evidence that couldn’t have been presented “at [her] former hearing,” the

Board of Immigration Appeals properly denied her motion to reopen.

§ 1003.2(c)(1).


      2. Rios Rey declares that she never received any updates regarding her case

after it was administratively closed. These allegations could give rise to an

ineffective-assistance-of-counsel claim, because, if believed, Rios Rey never had

an opportunity during the 2001 and 2002 hearings to present her fear of retaliation

if removed to Mexico. As the Government conceded during oral argument, Rios

Rey could pursue this claim by filing a new motion to reopen by following the

procedure outlined in Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). See

also Correa-Rivera v. Holder, 706 F.3d 1128, 1130–31 (9th Cir. 2013) (describing

the “procedural requirements” for a nonresident to make an IAC claim “established

by the BIA in Matter of Lozada”). We order petitioner’s counsel, Christopher J.

Stender, to deliver a copy of this memorandum disposition to Rios Rey. Counsel
                                                                                 page 3
shall also send confirmation to the Clerk of Court within fourteen days of the

publication of this disposition indicating that petitioner has received the

disposition.


      The petition for review is DENIED.
