United States v. 2020-01-24 | 16-71044 | JOSE BALLIN-GARCIA V. WILLIAM BARR | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE ALFREDO BALLIN-GARCIA, AKA
Jose Ballin, AKA Jose Garcia,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 16-71044
17-70144

Agency No. A206-409-625

MEMORANDUM
*

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted January 7, 2020
**

Pasadena, California

Before: WATFORD, BENNETT, and LEE, Circuit Judges.

The Board of Immigration Appeals (BIA) did not abuse its discretion by
denying Jose Alfredo Ballin-Garcia’s second motion to reopen.
Ballin-Garcia’s counsel filed the first motion to reopen based on Ballin-
Garcia’s potential eligibility for relief from cancellation of removal due to his two

*
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

JAN 24 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

Page 2 of 3

new qualifying U.S. relatives. The BIA denied that motion as untimely. Because
the untimeliness of his first motion to reopen resulted from his counsel’s
scheduling error, he filed a second motion to reopen seeking the same relief,
arguing that his counsel’s scheduling error constituted ineffective assistance of
counsel. The BIA implicitly agreed with Ballin-Garcia and analyzed his second
motion to reopen as it would have analyzed a timely motion to reopen.
As a threshold matter, the BIA properly assessed whether the scheduling
error prejudiced Ballin-Garcia by assessing whether a timely motion to reopen
would have been granted. See Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858
(9th Cir. 2004). To prevail on a timely motion to reopen based on new evidence, a
petitioner must show a “reasonable likelihood” that the statutory requirements for
the underlying relief have been satisfied. Ordonez v. I.N.S., 345 F.3d 777, 785 (9th
Cir. 2003).
The BIA correctly concluded that Ballin-Garcia failed to show prima facie
eligibility for cancellation of removal because the evidence that he offered did not
show “exceptional and extremely unusual hardship” to his wife and daughter.
Garcia v. Holder, 621 F.3d 906, 913 (9th Cir. 2010). Thus, even if timely, Ballin-
Garcia’s first motion to open would have failed. As a result, Ballin-Garcia did not
show that his counsel’s late filing prejudiced the outcome of his first motion to
reopen.

Page 3 of 3

Contrary to Ballin-Garcia’s argument, the BIA did not engage in fact finding
by concluding that he failed to show “exceptional and extremely unusual hardship”
to his wife and daughter. Rather, the BIA appropriately assessed whether he would
have carried his burden of showing prima facie eligibility for relief.
Finally, Ballin-Garcia’s challenge to the BIA’s denial of his request for a
continuance is moot. Prior to filing his motions to reopen, Ballin-Garcia requested
a continuance to marry his then-fiancé so that he could seek cancellation of
removal. Ballin-Garcia has now married his then-fiancé and unsuccessfully sought
cancellation of removal. Even assuming the BIA erred by denying his request for a
continuance, this court is unable to grant any effective relief.
PETITION FOR REVIEW DENIED in No. 17-70144; PETITION FOR
REVIEW DISMISSED in No. 16-71044.