Salvador Sifontes v. Eric Holder, Jr. , 543 F. App'x 727 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 25 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SALVADOR ORLANDO SIFONTES, No. 12-72111
Petitioner, Agency No. A091-614-656
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 15, 2013**
Before: FISHER, GOULD, and BYBEE, Circuit Judges.
Salvador Orlando Sifontes, a native and citizen of El Salvador, petitions pro
se for review of an order of the Board of Immigration Appeals (“BIA”) denying his
motion to reopen based on ineffective assistance of counsel. We have jurisdiction
under 8 U.S.C. § 1252. We review for abuse of discretion the BIA’s denial of a
*
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).
motion to reopen and review de novo claims of ineffective assistance of counsel.
Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir. 2004). We deny the petition for
review.
The BIA did not abuse its discretion by denying Sifontes’s motion to reopen
due to his failure to demonstrate prejudice from his former attorney’s improper
filing of his first motion to reopen and failure to inform him of his right to petition
for review of the agency’s rejection of that motion, where his first motion to
reopen presented no plausible grounds for success on the merits either in the first
instance before the BIA or on review before this court. See Rojas-Garcia v.
Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (holding that the absence of “plausible
grounds for relief” rebuts the presumption of prejudice); cf. Singh, 367 F.3d
at 1190 (stating that the presumption of prejudice is sustained if the petitioner’s
claim “could plausibly succeed on the merits”).
To the extent that Sifontes seeks to renew his motion for a stay of removal,
we deny this request as moot.
PETITION FOR REVIEW DENIED.
2 12-72111