Lino Murillo-Avendano v. Eric Holder, Jr.

MEMORANDUM

Petitioner appeals two decisions from the Board of Immigration Appeals (BIA), dated September 7, 2011 and February 5, 2013. The decisions denied four motions filed by petitioner — two motions to reopen petitioner’s 1999 removal proceeding, and two motions to reissue a prior BIA decision dated November 8, 2010. Both motions to reopen were number-barred because petitioner had previously filed a motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A). The two motions to reopen were also time-barred because petitioner filed them approximately a decade after his initial order of removal became final. See 8 U.S.C. § 1229a(c)(7)(C).

After we dismissed petitioner’s initial appeal from the November 8, 2010 decision (because it was eight days late), Order, No. 10-73846 (9th Cir. April 20, 2011), petitioner made the motions to reissue referred to above, arguing that his failure to file a timely appeal was due to the ineffective assistance of counsel. While this “created a presumption that [petitioner] was prejudiced because his counsel’s mistake deprived him of a[n] [] appeal,” this presumption is not conclusive. Rojas-Garcia v. Ashcroft, 339 F.3d 814, 827 (9th Cir.2003) (referencing…