Pablo Hernandez-Palacio v. Eric H. Holder Jr., No. 08-71920 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS SEP 28 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT PABLO IVAN HERNANDEZ-PALACIO, Petitioner, No. 08-71920 Agency No. A071-575-846 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges. Pablo Ivan Hernandez-Palacio, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals ( BIA ) order denying his motions to reconsider and reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to * 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). reopen or reconsider, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005), and we deny the petition for review. The BIA acted within its discretion in denying Hernandez-Palacio s motion to reopen based on ineffective assistance of counsel because he failed to comply with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), and the ineffective assistance he alleges is not plain on the face of the record. See Reyes v. Ashcroft, 358 F.3d 592, 597-99 (9th Cir. 2004). In his opening brief, Hernandez-Palacio fails to address, and therefore has waived any challenge to, the BIA s determination that, construed as motion to reconsider, the motion was untimely filed. 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). PETITION FOR REVIEW DENIED. 2 08-71920

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