CARMELINA SUC-REYNOZO, ESTEFANY CARMELINA LUCAS-SUC, and MAYRA MELISSA LUCAS-SUC v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARMELINA SUC-REYNOZO,
ESTEFANY CARMELINA LUCAS-SUC,
and MAYRA MELISSA LUCAS-SUC,
Petitioners,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 17-70040
Agency Nos. A206-884-169
A206-884-170
A206-884-171
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 12, 2019**
Before: LEAVY, BEA, and N.R. SMITH, Circuit Judges.
Carmelina Suc-Reynozo, Estefany Carmelina Lucas-Suc, and Mayra Melissa
Lucas-Suc, natives and citizens of Guatemala, petition for review of the Board of
Immigration Appeals’ (“BIA”) order denying their motion to reopen removal
proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAR 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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of discretion the denial of a motion to reopen, and review de novo questions of
law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We grant in
part, deny in part, and dismiss in part the petition for review.
Petitioners’ motion to reopen alleged that prior counsel Amanda Bhuket
provided ineffective assistance of counsel by failing to (1) timely file a petition for
review with this court, and (2) move to remand to the immigration judge (“IJ”)
based on the alleged ineffective assistance of prior counsel Vicky Currie.
Because the BIA determined that Bhuket’s failure to file a petition for
review constituted clear ineffective assistance, the BIA abused its discretion in
denying this aspect of petitioners’ motion for failure to comply with the procedural
requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See Rodriguez-
Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir. 2002) (“[T]he record itself
demonstrates the legitimacy of petitioners’ ineffective assistance complaint—
relieving them of the need technically to comply with Lozada—since it is
undisputed that petitioners’ counsel failed timely to file their applications.”);
Correa-Rivera v. Holder, 706 F.3d 1128, 1133 (9th Cir. 2013) (BIA abused its
discretion in dismissing ineffective assistance claim on Lozada grounds where
petitioner submitted a declaration from prior counsel admitting responsibility for
failure to timely file application for relief). The BIA also failed to address whether
Bhuket’s failure to timely file a petition for review resulted in prejudice. See

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Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (BIA is not free to
ignore arguments raised by a petitioner); Ray v. Gonzales, 439 F.3d 582, 587-88
(9th Cir. 2006) (where counsel’s error deprives an alien of appellate proceedings,
there is a rebuttable presumption of prejudice; presumption is not rebutted if the
alien demonstrates plausible grounds for relief). Accordingly, we remand for the
BIA to address in the first instance whether Bhuket’s failure to file a petition for
review resulted in prejudice, and if so, whether reopening or reissuance is
warranted.
With respect to Bhuket’s alleged failure to move to remand to the IJ based
on the alleged ineffective assistance of Currie, the BIA did not abuse its discretion
in denying this aspect of petitioners’ motion for failure to comply with Matter of
Lozada, where they failed to either show that a complaint against Currie was filed
with the proper disciplinary authorities or explain why no such complaint was
filed, and Currie’s ineffective assistance is not plain on the face of the record. See
Tamang v. Holder, 598 F.3d 1083, 1089-91 (9th Cir. 2010) (holding that failure to
satisfy Matter of Lozada requirements was fatal to ineffective assistance of counsel
claim where ineffectiveness was not plain on the face of the record).
We lack jurisdiction to consider petitioners’ unexhausted contention that
prior counsel Currie failed to argue that Suc-Reynozo’s daughters were
individually eligible for relief. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir.

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2010) (this court lacks jurisdiction to review contentions not raised before the
agency).
In light of our disposition, we do not reach petitioners’ remaining
contentions regarding prejudice or eligibility for asylum and related relief. See
Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are
not required to decide issues unnecessary to the results they reach).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW GRANTED in part; DENIED in part;
DISMISSED in part; REMANDED.

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