Aguallo

dissenting:

While Aguallo’s motion to reopen failed to present evidence previously unavailable at the time of the merits hearing before the Immigration Judge, Aguallo may have an ineffective assistance of counsel claim.

Miguel Angel Aguallo (“Aguallo”) has lived in the United States for over 22 years. Aguallo, a native and citizen of Belize, was admitted into the United States in 1988 on a tourist visa and overstayed his departure date. He is a trained mechanic, and is highly respected by his co-workers. Aguallo has four American-born citizen children, now approximately 15, 14, 12, and 10 years old. Witnesses have testified to Aguallo’s excellent parenting and his active involvement in his children’s education and general welfare. Scores of certificates and report cards testify to his children’s achievements in school.

Meanwhile, Aguallo’s wife, also a native and citizen of Belize without documents, has been sporadically absent from their household, often leaving for months at a time. At the time of the hearing before the Immigration Judge, Aguallo’s wife had filed for divorce. Aguallo testified that he would likely take his children with him to *627 Belize because he did not…

*626 MEMORANDUM ***

Petitioner Miguel Angel Aguallo, a native and citizen of Belize, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen following the denial of his application for cancellation of removal for failure to meet the hardship requirement set forth in 8 U.S.C. § 1229b(b)(l)(D). The only issue before the court is the denial of the motion to reopen. Because the BIA did not commit any legal error or otherwise abuse its discretion, we deny the petition. See Aguilar Gonzalez v. Mulcasey, 534 F.3d 1204, 1208 (9th Cir.2008) (holding that we review de novo the BIA’s legal determinations); He v. Gonzales, 501 F.3d 1128, 1130-31 (9th Cir.2007) (“We review for abuse of discretion the BIA’s denial of a motion to reopen.”).

The BIA correctly determined that the standard in 8 C.F.R. § 1003.2 (c)(1) applied to Petitioner’s motion to reopen and that the motion to reopen failed to meet that standard. See Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir.2005) (explaining that 8 C.F.R. § 1003.2 (c)(1) requires that the evidence submitted with a motion to reopen must not have been available at the time of the former hearing before the IJ). The…

FILED

NOT FOR PUBLICATION APR 04 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S . CO UR T OF AP PE A LS

FOR THE NINTH CIRCUIT

MIGUEL ANGEL AGUALLO, No. 06-71785

Petitioner, Agency No. A078-024-559

v.

MEMORANDUM *

ERIC H. HOLDER JR., Attorney General,

Respondent.

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

Submitted November 3, 2010** Pasadena, California

Before: PREGERSON, RIPPLE,*** and GRABER, Circuit Judges.

Petitioner Miguel Angel Aguallo, a native and citizen of Belize, petitions for

review of the Board of Immigration Appeals' (þBIAþ) denial of his motion to

reopen following the denial of his application for cancellation of removal for

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). *** The Honorable Kenneth F. Ripple, Senior United States Circuit Judge for the Seventh Circuit, sitting by designation. failure to meet the hardship…