Gonzalo Estrada-Rios v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GONZALO ESTRADA-RIOS,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 12-72128
Agency No. A092-922-201
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 24, 2013**
Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Gonzalo Estrada-Rios, a native and citizen of Mexico, petitions for review of
an order of the Board of Immigration Appeals (“BIA”) denying his motion to
reopen deportation proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252.
We review for abuse of discretion the BIA’s denial of a motion to reopen and
FILED
SEP 30 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-72128 2
review de novo claims of ineffective assistance of counsel. Singh v. Ashcroft,
367 F.3d 1182, 1185 (9th Cir. 2004). We deny in part and dismiss in part the
petition for review.
The BIA did not abuse its discretion by denying Estrada-Rios’s motion to
reopen due to his failure to demonstrate that his former attorney’s untimely filing
of his first petition for review prejudiced the outcome of his deportation
proceedings, where that petition for review presented no plausible grounds for
success on the merits. 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”).
We lack jurisdiction to consider Estrada-Rios’s challenges to his underlying
order of deportation or the BIA’s August 9, 2011, order denying his first motion to
reopen, because this petition for review is untimely as to those orders. See
Membreno v. Gonzales, 425 F.3d 1227, 1229 (9th Cir. 2005) (en banc).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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