Jose Antonio Regalado Zavala v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ANTONIO REGALADO ZAVALA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
Nos. 16-73794
17-71776
Agency No. A041-861-417
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 26, 2023**
Before: CANBY, S.R. THOMAS, and CHRISTEN, Circuit Judges.
In these consolidated petitions for review, Jose Antonio Regalado Zavala, a
native and citizen of Mexico, seeks review of the Board of Immigration Appeals’
(“BIA”) order dismissing his appeal from an immigration judge’s decision denying
his application for cancellation of removal (petition No. 16-73794), and the BIA’s
* 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
JUL 10 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 16-73794
order denying his motion to reopen (petition No. 17-71776). Our jurisdiction is
governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a
motion to reopen. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). In petition
16-73794, we dismiss the petition for review. In petition 17-71776, we deny the
petition for review.
We lack jurisdiction to review the agency’s discretionary denial of
cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B)(i); Patel v. Garland, 142 S.
Ct. 1614, 1622-23 (2022) (where the agency denies a form of relief listed in
8 U.S.C. § 1252(a)(2)(B)(i), federal courts have jurisdiction to review
constitutional claims and questions of law, but not factual findings and
discretionary decisions). Regalado Zavala’s challenge to the agency’s adverse
credibility determination does not raise a colorable legal or constitutional claim
over which we retain jurisdiction. See 8 U.S.C. § 1252(a)(2)(D). Thus, we dismiss
petition 16-73794.
The BIA did not abuse its discretion in denying petitioner’s motion to
reopen based on ineffective assistance of counsel where petitioner failed to show
prejudice from the performance of former counsel. See Rojas-Garcia v. Ashcroft,
339 F.3d 814, 826 (9th Cir. 2003) (petitioner failed to establish prejudice where he
presented no plausible grounds for relief). Regalado Zavala’s contention that he is
eligible for asylum and withholding of removal based on an imputed political

-- 2 of 3 --

3 16-73794
opinion is not properly before the court because he failed to raise it before the BIA.
See 8 U.S.C. § 1252(d)(1) (exhaustion of administrative remedies required); see
also Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1113-14 (2023) (section
1252(d)(1) is a non-jurisdictional claim-processing rule). Thus, we deny petition
17-71776.
The temporary stay of removal remains in place until the mandate issues.
NO. 16-73794: PETITION FOR REVIEW DISMISSED.
NO. 17-71776: PETITION FOR REVIEW DENIED.

-- 3 of 3 --