Ivan Bayona Guzman; Maria Luisa Sanchez Navarrete v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IVAN BAYONA GUZMAN; MARIA
LUISA SANCHEZ NAVARRETE,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-70682
Agency Nos. A206-204-383
A206-204-403
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2022**
San Francisco, California
Before: LINN,*** RAWLINSON, and HURWITZ, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Richard Linn, United States Circuit Judge for the U.S.
Court of Appeals for the Federal Circuit, sitting by designation.
FILED
NOV 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Ivan Bayona Guzman and his spouse Maria Luisa Sanchez Navarrete, natives
and citizens of Mexico, petition for review of a decision of the Board of Immigration
Appeals (“BIA”) denying their motion to reopen claiming ineffective assistance of
counsel because they had failed to show prejudice. We deny the petition in part and
dismiss it in part.
1. Because the government assumes arguendo that the motion to reopen was
timely filed, petitioners met the procedural requirements of In re Lozada, 19 I. & N.
Dec. 637, 639 (BIA 1988), and counsel failed to perform competently, the only issue
on review is whether the BIA erred in finding that petitioners failed to establish
prejudice. We conclude it did not.
a. The Immigration Judge (“IJ”) found that petitioners failed to establish the
good moral character required for cancellation of removal, see 8 U.S.C.
§ 1229b(b)(1)(B), because they provided false testimony during the removal
hearing. In denying their motion to reopen, the BIA emphasized that petitioners “did
not submit affidavits or any other evidence explaining the discrepancies in their
testimony” or “make any argument about how, if they had been more prepared, they
would have testified differently.” Although petitioners “need not explain exactly
what evidence [they] would have presented in support of [their] application[s],”
Morales Apolinar v. Mukasey, 514 F.3d 893, 898 (9th Cir. 2008) (cleaned up), they
must do more than “simply maintain that they could demonstrate a valid . . . claim

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if their case were remanded,” Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999). The
record also supports the BIA’s determination that present counsel made the same
arguments in connection with the motion to reopen that allegedly deficient prior
counsel made on appeal. Petitioners thus failed to demonstrate that the performance
of counsel who had previously represented them in proceedings before the agency
“was so inadequate that it may have affected the outcome of the proceedings.”
Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004) (cleaned up).
b. As to the alleged ineffective assistance by the lawyer who represented
petitioners in their petition for review of the BIA’s denial of cancellation of removal,
petitioners failed to establish “plausible grounds for relief,” Morales Apolinar, 514
F.3d at 899 (cleaned up), because this Court lacks jurisdiction to review the agency’s
decision denying cancellation. See 8 U.S.C. § 1252(a)(2)(B)(i); Patel v. Garland,
142 S. Ct. 1614, 1622–26 (2022). We only have jurisdiction over petitions for
review challenging the denial of cancellation of removal if they present
“constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). Petitioners
do not raise such questions, merely disputing the IJ’s factual finding that they
provided false testimony.
2. We generally lack jurisdiction to review the BIA’s decision not to reopen
proceedings sua sponte. See Menendez-Gonzales v. Barr, 929 F.3d 1113, 1116 (9th
Cir. 2019). Although we may do so when the agency relies on an erroneous

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constitutional or legal premise, id. at 1116–17, the IJ articulated and applied the
correct standard. He correctly stated that petitioners’ good moral character is a
statutory requirement for cancellation of removal, see 8 U.S.C. § 1229b(b)(1)(B),
testimony before him can be considered on the issue, see In re Ortega-Cabrera, 23
I. & N. Dec. 793, 796 (BIA 2005); Castillo-Cruz v. Holder, 581 F.3d 1154, 1162
(9th Cir. 2009), and 8 U.S.C. § 1101(f)(6) allows a finding of a lack of good moral
character for providing false testimony for the purpose of obtaining immigration
benefits. Petitioners’ quarrel is with the IJ’s factual findings, not his legal premises.
We therefore cannot review the BIA’s decision not to sua sponte reopen.
PETITION FOR REVIEW DENIED IN PART AND DISMISSED IN
PART.

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