Lino Murillo-Avendano v. Eric Holder, Jr. , 598 F. App'x 538 ( 2015 )

FILED
NOT FOR PUBLICATION MAR 18 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINO MURILLO-AVENDANO, No. 11-72819
Petitioner, Agency No. A035-033-777
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
LINO MURILLO-AVENDANO, No. 13-70806
Petitioner, Agency No. A035-033-777
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 6, 2015**
Pasadena California
Before: GOULD and TALLMAN, Circuit Judges, and KORMAN, Senior District
Judge.***
Petitioner appeals two decisions from the Board of Immigration Appeals (BIA),
dated September 7, 2011 and February 5, 2013. The decisions denied four motions
filed by petitioner—two motions to reopen petitioner’s 1999 removal proceeding, and
two motions to reissue a prior BIA decision dated November 8, 2010. Both motions
to reopen were number-barred because petitioner had previously filed a motion to
reopen. See 8 U.S.C. § 1229a(c)(7)(A). The two motions to reopen were also time-
barred because petitioner filed them approximately a decade after his initial order of
removal became final. See 8 U.S.C. § 1229a(c)(7)(C).
After we dismissed petitioner’s initial appeal from the November 8, 2010
decision (because it was eight days late), Order, No. 10-73846 (9th Cir. April 20,
2011), petitioner made the motions to reissue referred to above, arguing that his
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
2
failure to file a timely appeal was due to the ineffective assistance of counsel. While
this “created a presumption that [petitioner] was prejudiced because his counsel’s
mistake deprived him of a[n] [] appeal,” this presumption is not conclusive. Rojas-
Garcia v. Ashcroft, 339 F.3d 814, 827 (9th Cir. 2003) (referencing Dearinger ex rel.
v. Reno, 232 F.3d 1042, 1045 (9th Cir. 2000)). Instead, it may be rebutted by a
showing that petitioner alleged “no plausible grounds for relief.” Id. at 827. We are
satisfied that there are no plausible grounds that would have entitled petitioner to
relief on appeal from the BIA’s November 8, 2010 decision.
AFFIRMED.
3