Salvacion Tenedor Ozoa; Raymundo Melon Ozoa 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 finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
RA/Research 05-72806+
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVACION TENEDOR OZOA;
RAYMUNDO MELON OZOA,
Petitioners,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
Nos. 05-72806
08-70123
Agency Nos. A072-140-438
A072-140-439
MEMORANDUM *
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
In these consolidated petitions for review, Salvacion Tenedor Ozoa and
Raymundo Melon Ozoa, husband and wife and natives and citizens of the
Philippines, petition for review of the Board of Immigration Appeals’ (“BIA”)
FILED
NOV 30 2009
MOLLY C. DWYER, CLERK
U .S. C O U R T O F AP PE ALS

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order dismissing their appeal from an immigration judge’s decision denying their
motion to reopen based on ineffective assistance of counsel and denying their
motion to reopen to apply for adjustment of status. Our jurisdiction is governed by
8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
reopen, and de novo claims of due process violations, including those resulting
from ineffective assistance of counsel. See Lin v. Ashcroft, 377 F.3d 1014, 1023
(9th Cir. 2004). We grant the petition for review in No. 05-72806 and we deny in
part and dismiss in part the petition for review in No. 08-70123.
We disagree with the agency’s conclusion that petitioners had to comply
with the requirements in Matter of Lozada, 19 I. & N. 637, 639 (BIA 1988), for
asserting a claim of ineffective assistance of counsel where petitioners’ attorney’s
ineffective assistance was plain on the face of the record because he failed to
timely file a notice of appeal. See Castillo-Perez v. INS, 212 F.3d 518, 525-26 (9th
Cir. 2000). Petitioners’ attorney’s failure to file a notice of appeal resulted in
prejudice. See Siong v. INS, 376 F.3d 1030, 1038-39 (9th Cir. 2004).
The BIA did not abuse its discretion in denying petitioner’s motion to
reopen to adjust status as untimely because it was filed more than two years after
the BIA’s April 14, 2005, order, and petitioners have failed to establish that an
exception to the regulatory filing deadline applied. See 8 C.F.R. § 1003.2(c)(2)-
(3). Petitioners’ contention that the denial of their motion violated due process

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therefore fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring
error for a due process violation).
We lack jurisdiction to review petitioners’ contention that the BIA should
have equitably tolled the statutory and regulatory deadlines because they failed to
exhaust this argument before the agency. See Barron v. Ashcroft, 358 F.3d 674,
677-78 (9th Cir. 2004).
We lack jurisdiction to review the BIA’s decision not to invoke its sua
sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159
(9th Cir. 2002).
Petitioners’ motion to hold the case in abeyance is denied.
In 05-72806, PETITION FOR REVIEW GRANTED.
In 08-70123, PETITION FOR REVIEW DENIED in part; DISMISSED
in part.

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