Efrain Rene Lopez Miranda v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EFRAIN RENE LOPEZ MIRANDA,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
Nos. 17-70903
17-72525
Agency No. A200-552-360
MEMORANDUM*
On Petitions for Review of an Order of the
Board of Immigration Appeals
Submitted September 18, 2019**
Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.
In these consolidated petitions for review, Efrain Rene Lopez Miranda, a
native and citizen of Guatemala, petitions for review of the Board of Immigration
Appeals’ (“BIA”) orders denying his motion to reopen and denying his motion to
reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse
of discretion the denial of motions to reopen or to reconsider and review de novo
* 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).
FILED
SEP 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-70903 & 17-72525
questions of law and claims of due process violations. Mohammed v. Gonzales,
400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the
petition for review in 17-70903, and deny the petition for review in 17-72525.
The BIA did not abuse its discretion in denying Lopez Miranda’s motion to
reopen based on ineffective assistance of counsel, where he did not show prejudice
from any ineffective assistance. See id. at 793-94 (to prevail on an ineffective
assistance of counsel claim, alien must show counsel failed to perform with
sufficient competence and that he was prejudiced by counsel’s performance;
prejudice results when performance was so inadequate that it may have affected
the outcome of proceedings).
The BIA did not abuse its discretion in denying as untimely Lopez
Miranda’s motion to reopen to seek newly available relief, where it was filed more
than nine months after his final order of removal. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Lopez Miranda’s contentions
regarding changed personal circumstances do not meet any statutory or regulatory
exception to the filing deadline. See 8 U.S.C. § 1229a(c)(7)(ii)-(iv); 8 C.F.R.
§ 1003.2(c)(3); cf. 8 U.S.C. § 1229a(c)(7)(C)(ii) (time and numerical limitations do
not apply to aliens seeking to apply for asylum or withholding of removal based on
changed circumstances in the country of removal); 8 C.F.R. § 1003.2(c)(3)(2)
(same).

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3 17-70903 & 17-72525
Lopez Miranda’s contentions that the BIA relied on conjecture,
mischaracterized evidence, or failed to properly consider all factors, arguments,
and evidence are not supported by the record. Thus, the BIA did not err or violate
due process in denying the motion to reopen. See Padilla-Martinez v. Holder, 770
F.3d 825, 830 (9th Cir. 2014) (“To prevail on a due-process claim, a petitioner
must demonstrate both a violation of rights and prejudice.”).
We lack jurisdiction to review Lopez Miranda’s unexhausted contention that
the government failed to meet its burden of proof regarding removability. See
Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (“We lack jurisdiction to
review legal claims not presented in an alien’s administrative proceedings before
the BIA.”).
Lopez Miranda does not raise, and therefore waives, any challenge to the
BIA’s denial of his motion to reconsider. See Lopez-Vasquez v. Holder, 706 F.3d
1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in an
opening brief are waived).
IN 17-70903, PETITION FOR REVIEW DENIED in part; DISMISSED
in part.
IN 17-72525, PETITION FOR REVIEW DENIED.

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