Ricardo Ayala-Negrete v. William Barr
16-72869
| 9th Cir. | Feb 22, 2019Background
- Petitioner Ricardo Ayala-Negrete, a Mexican national, filed multiple motions to reopen immigration proceedings; the Ninth Circuit considered consolidated petitions challenging BIA denials of his second and third motions to reopen.
- The BIA denied the second motion to reopen, which rested on alleged ineffective assistance by prior counsel, and denied the third motion as untimely and barred by the numerical limit on motions to reopen.
- Ayala-Negrete submitted extra-record material with his opening brief in the Ninth Circuit; the court declined to consider that material because review is generally limited to the administrative record.
- The BIA found Ayala-Negrete failed to show counsel’s performance was deficient or that he suffered prejudice required to reopen based on ineffective assistance.
- The third motion was filed more than seven years after the deadline and Ayala-Negrete did not demonstrate any exception (e.g., diligence or Lozada procedural compliance) that would excuse the untimeliness or the numerical bar.
- The Ninth Circuit lacked jurisdiction to consider several contentions that Ayala-Negrete had not exhausted before the BIA (including certain ineffective-assistance claims and arguments that the third motion was not number-barred).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA abused its discretion denying second motion to reopen based on ineffective assistance of prior counsel | Ayala-Negrete: prior counsel was ineffective, warranting reopening | BIA: petitioner did not show counsel’s performance was deficient or prejudicial | Denied — no abuse of discretion; petitioner failed to establish deficient performance and prejudice |
| Whether Ninth Circuit may consider extra-record evidence submitted with petitioner’s brief | Ayala-Negrete: court should consider extra-record evidence supporting his claims | Government: review is limited to the administrative record | Court did not consider extra-record material; review limited to administrative record |
| Whether court may review ineffective-assistance claims not presented to the BIA (exhaustion) | Ayala-Negrete: raised ineffective-assistance contentions on appeal | Government: claims unexhausted before BIA; court lacks jurisdiction | Dismissed for lack of jurisdiction as to unexhausted claims |
| Whether BIA abused its discretion denying third motion to reopen as untimely and number-barred | Ayala-Negrete: alleged exceptions or grounds to excuse untimeliness/number-bar | BIA: motion filed >7 years late; petitioner did not establish exceptions (e.g., Lozada/diligence) | Denied — BIA did not abuse discretion; motion was untimely and number-barred; court lacks jurisdiction over unexhausted challenges |
Key Cases Cited
- Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005) (standard: motions to reopen reviewed for abuse of discretion)
- Singh v. Holder, 658 F.3d 879 (9th Cir. 2011) (ineffective-assistance-based motion to reopen requires deficient performance and prejudice)
- Dent v. Holder, 627 F.3d 365 (9th Cir. 2010) (rule limiting review to the administrative record and standard for considering out-of-record evidence)
- Najmabadi v. Holder, 597 F.3d 983 (9th Cir. 2010) (BIA must adequately consider evidence and announce reasons for decision)
- Tijani v. Holder, 628 F.3d 1071 (9th Cir. 2010) (court lacks jurisdiction to review claims not exhausted before the agency)