Tomas Ayala Ponce, et al v. Eric H. Holder Jr., No. 08-71330 (9th Cir. 2010)
Annotate this Case
Download PDF
FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS AUG 25 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT TOMAS AYALA-PONCE; ANGELICA AYALA MONTESINO; AMADOR AYALA MONTESINO, Petitioners, No. 08-71330 Agency Nos. A095-175-416 A095-175-417 A095-175-418 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. TOMAS AYALA-PONCE, Petitioner, No. 09-72132 Agency No. A095-175-416 v. ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petitions for Review of Orders of the Board of Immigration Appeals * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Submitted August 10, 2010 ** Before: LEAVY, HAWKINS, and IKUTA, Circuit Judges. In these consolidated petitions for review, Tomas Ayala-Ponce, Angelica Ayala Montesino, and Amador Ayala Montesino, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals ( BIA ) orders denying their motions to reopen removal proceedings. We have jurisdiction under 8 U.S.C. ยง 1252. We review for abuse of discretion the denial of a motion to reopen and de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny both petitions for review. In the opening brief, petitioners fail to address, and thereby waive any challenge to, the BIA s order denying their second motion to reopen. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a party s opening brief are waived). The BIAdid not abuse its discretion by denying Ayala-Ponce s third motion to reopen. Ayala-Ponce failed to establish that his former counsel did not perform with sufficient competence during proceedings because Ayala-Ponce did not become eligible to adjust his status until after the deadline for filing a motion to ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 08-71330 reopen had expired. See Mohammed, 40 F.3d at 793 (petitioner must demonstrate first that counsel failed to perform with sufficient competence, and, second, that he was prejudiced by counsel s performance). It follows that Ayala-Ponce s due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to establish due process claim). PETITIONS FOR REVIEW DENIED. 3 08-71330
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
