FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIANO GRANADOS-OSEGUERA, 

No. 03-73030 Petitioner,

Agency No.

v.  A091-692-353

MICHAEL B. MUKASEY, Attorney ORDER AND General, OPINION Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

February 17, 2006—Pasadena, California

Filed October 7, 2008

Before: Betty B. Fletcher, A. Wallace Tashima, and

Consuelo M. Callahan, Circuit Judges.

Per Curiam Opinion

14257
COUNSEL

Mary Beth Canty, Laura Boyle, Josh Chetwynd, Law Students, Tucson, Arizona, argued the case for the petitioner;

Willie M. Jordan-Curtis, Ph.D., J.D., Esq., Assistant Dean for

Student Affairs and Associate Clinical Professor of Law, The

University of Arizona, Rogers College of Law, Pro Bono

Appellate Project, Tucson, Arizona, was on the briefs for the

petitioner. 

Arthur L. Rabin, Department of Justice, Washington, D.C.,

argued the case for the respondent; Peter D. Keisler, Assistant

Attorney General, Michelle Gorden Latour, Assistant Director, Linda S. Wendtland, Assistant Director, and Cindy S. Ferrier, Senior Litigation Counsel, Washington, D.C., were on

the briefs for the respondent. 

ORDER

The opinion, published at 464 F.3d 993, is WITHDRAWN.

It may not be cited as precedent by or to this court or any district court of the Ninth Circuit. 

OPINION

PER CURIAM: 

On September 25, 2006 we granted Oseguera’s petition to

remand his case to the Board of Immigration Appeals (“BIA”)

14260 GRANADOS-OSEGUERA v. MUKASEY
in order to re-evaluate his motion to reopen in light of his

ineffective assistance of counsel claim. See GranadosOseguera v. Gonzales, 464 F.3d 993 (9th Cir. 2006). Upon

discovering that this opinion had relied on an incomplete

administrative record tendered by the Government in this

appeal, we granted the Government’s Petition for Rehearing

on October 31, 2007. After careful reconsideration, we now

withdraw our prior opinion and deny Oseguera’s petition to

reopen. 

To reach this conclusion we must resolve two issues. First,

did the denial, on abandonment grounds, of Oseguera’s I-140

petition render this appeal moot? Second, assuming his appeal

presented a live controversy, did the BIA abuse its discretion

by denying Oseguera’s motion to reopen? We conclude that

the appeal is not moot, but that there was no abuse of discretion in the BIA’s denial because Oseguera overstayed his voluntary departure period and was therefore statutorily barred

from the requested relief. 

I. FACTS AND PROCEDURAL HISTORY

Oseguera entered the United States on or around June 6,

1984. He sought asylum in August 1993, although that application was later abandoned in lieu of a request for cancellation of removal. Oseguera’s cancellation of removal

application was delayed several times due to his prior counsel’s failure to submit a complete application. The immigration judge (“IJ”) ultimately denied the requested relief on the

grounds that Oseguera did not satisfy the “extreme hardship”

requirement. 

A. Proceedings before the BIA.

The BIA summarily affirmed the IJ on September 6, 2002,

but granted Oseguera permission to voluntarily depart “within

30 days of the date of this order or any extension beyond that

time as may be granted by the district director.” Pursuant to

GRANADOS-OSEGUERA v. MUKASEY 14261
Immigration and Nationality Act regulations, Oseguera was

required to file any motion to reopen before his period for

voluntary departure expired (which was, in his case, October

6, 2002). See 8 U.S.C. § 1229c(d)(1). 

Oseguera eventually filed a motion to reopen on December

6, 2002—sixty two days after the voluntary departure period

had expired. Oseguera asked the BIA to excuse the untimely

filing on the grounds that “exceptional circumstances”—

illnesses of his daughter and father—delayed a timely filing.

Oseguera also urged that he was prima facie eligible for relief

from his removal order, because his employer had submitted

an I-140 Alien Employment Certification on his behalf. In a

supplement to the motion, Oseguera’s counsel also represented that she had “approached the Service” to seek an

extension of his voluntary departure time.1 Oseguera’s supplement also included Oseguera’s I-140 Immigrant Petition for

Alien Worker; that application was later rejected as abandoned on August 24, 2004.

On July 23, 2003 the BIA denied Oseguera’s motion to

reopen on three separate grounds. First, the BIA rejected

Oseguera’s “exceptional circumstances” claim, because

amendments to the INA had withdrawn the “exceptional circumstances” exception to the bar on availability of discretionary relief in cases where a petitioner has overstayed his

voluntary departure period. See Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (“IIRIRA”), Section 240(b). Second, the BIA observed that Oseguera’s counsel had sought an extension of the voluntary departure period

from the wrong entity, and so there was no other basis to permit the otherwise untimely filing. Third, the BIA reasoned

that even if the application were timely, Oseguera had failed

1Although the record is not clear as to the specific entity from whom the

extension was sought, INA regulations give the District Director exclusive

authority to grant an extension of the voluntary removal period. See 8

C.F.R. § 240.25(c). 

14262 GRANADOS-OSEGUERA v. MUKASEY
to make the necessary showing of prima facie eligibility for

relief because he did not submit an I-485 Application for

Adjustment of Status along with his motion to reopen. It is

of that order—in its complete form—that Oseguera now seeks

review. 

In our prior opinion, the majority voted to remand Oseguera’s petition to the BIA for the purpose of re-evaluating his

motion to reopen in light of his ineffective assistance of counsel claim. 446 F.3d at 999. However, it was later discovered

that there was a materially incomplete administrative record

originally submitted with this petition for review. Specifically, a critical page of the BIA’s July 23, 2003 order denying

Oseguera’s motion to reopen was omitted from the record. In

light of this omission—which undercut the panel’s rationale

for resolving the appeal—rehearing was granted. The panel

ordered supplemental briefing, which was completed on April

29, 2008. 

B. Arguments and additional information submitted

in supplemental briefing. 

Oseguera’s primary argument on appeal is, once again, that

but for ineffective assistance of counsel the BIA might have

reached a different outcome on the motion to reopen his

removal proceedings. Oseguera contends that his prior counsel was ineffective due to her failure to file an I-140 Immigrant Petition for Alien Worker earlier in the proceedings, and

her accompanying failure to file an I-485 application with his

motion to reopen. Oseguera acknowledges that, even assuming his motion to reopen had been complete, the BIA was statutorily barred from providing any discretionary relief as a

result of his failure to file before the deadline for voluntary

departure had passed. Id. at 22. Oseguera nonetheless contends that if this court provides relief on the ineffective assistance of counsel claim, on remand the BIA could potentially

find that his overstay of the voluntary departure period was

GRANADOS-OSEGUERA v. MUKASEY 14263
the product of his counsel’s reassurance that the overstay

would be excused.

The Government has supplemented the record by submitting an August 25, 2004 notice from the Department of

Homeland Security (“DHS”) indicating that the I-140 Alien

Worker Petition submitted on Oseguera’s behalf was denied

as abandoned. In its Supplemental Brief, the Government

asserts that the abandonment of the I-140 Petition—which is

one part of the documentation necessary for Oseguera to gain

any relief even if his removal proceedings were reopened—

renders Oseguera’s appeal moot. Oseguera responded by filing a Motion for Modification of the Record that included an

affidavit from his former employer, Bert Hansen, who indicated that he was never informed by Oseguera’s prior counsel

of the need for any action on the abandoned application, and

confirmed a willingness to file a new I-140 application once

this appeal is resolved. On March 27, 2008 the panel granted

the Motion for Modification. Thus, the BIA’s complete July

23, 2003 Order, the August 25, 2004 DHS notice of abandonment, and the Hansen affidavit were all before the panel on

this rehearing. 

II. ANALYSIS

We review the denial of a motion to reopen removal proceedings for abuse of discretion. Hernandez v. Mukasey, 524

F.3d 1014, 1017 (9th Cir. 2008). Questions of law, as well as

due process claims, are reviewed de novo. Id.

A. Oseguera’s Appeal is Not Rendered Moot by the

Abandonment of his I-140 Application.

[1] This court has an obligation to determine whether a case

presents a live controversy, and is precluded from entering

judgment in an appeal that has been rendered moot. See

Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1128-29

(9th Cir. 2005) (en banc) (“For a case to fall within the

14264 GRANADOS-OSEGUERA v. MUKASEY
parameters of our limited judicial power, it is not enough that

there may have been a live controversy when the case was

decided by the court whose judgment we are reviewing.

Rather, Article III requires that a live controversy persist

throughout all stages of the litigation.”) (internal quotation

marks and citation omitted). A live controversy requires: (1)

the existence of an injury in fact, (2) a fairly traceable connection between the injury and the challenged action of the

defendant, and (3) a likelihood that a favorable decision will

redress the claimed injury. Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 189

(2000). The party claiming mootness “has the heavy burden

of establishing that there is no effective relief remaining for

[us] to provide.” Seven Words LLC v. Network Solutions, 260

F.3d 1089, 1095 (9th Cir. 2001) (internal citation omitted);

see also Adarand Constructors, Inc. v. Slater, 528 U.S. 216,

224 (2000) (per curiam) (“It is no small matter to deprive a

litigant of the rewards of its efforts . . . Such action on

grounds of mootness would be justified only if it were absolutely clear that the litigant no longer had any need of the

judicial protection that is sought.”) (emphasis added). 

Relying on a line of authority addressing mootness in cases

concerning the licensing of businesses, the Government

argues that the August 25, 2004 notice of abandonment from

DHS renders this appeal moot. See City News & Novelty, Inc.

v. City of Waukesha, 531 U.S. 278 (2001); San Lazaro Ass’n,

Inc. v. Connell, 286 F.3d 1088, 1096 (9th Cir. 2002). However, this line of authority is inapposite and insufficient to

carry the argument successfully that Oseguera’s appeal is

moot. 

[2] Initially, Oseguera’s appeal is distinct from the business

licensing cases in that those cases involve the party-in-interest

voluntarily agreeing to forego the particular benefit that they

contend some form of state action has denied them. City

News, 531 U.S. at 281 (petitioner voluntarily withdrawing

renewal license for adult business alleged to have been

GRANADOS-OSEGUERA v. MUKASEY 14265
improperly withheld in violation of the First Amendment);

San Lazaro, 286 F.3d at 1096 (plaintiff voluntarily cancelling

its license to operate as a Medicaid provider). Here, there is

no question that the actions that purport to render the case

moot were not undertaken by Oseguera. Indeed, it is imprecise even to argue, as the Government does, that the DHS letter shows that Oseguera’s employer “abandoned” his I-140

petition. What that letter actually reflects is an administrative

determination by the DHS that it has denied the application

because the agency itself has deemed it abandoned.

2

 The

agency denial of the I-140 Petition is an additional fact that

bears on whether the panel should deny Oseguera’s underlying petition seeking relief from the BIA order denying

reopening. But simply because the Government is able to tender facts to show that it will prevail on the merits does not

mean that the Petition has been rendered moot. There is still

a live controversy between the Government and Oseguera as

to whether he may gain any relief from the BIA’s July 23,

2003 order. 

[3] In sum, the Government has not carried its “heavy burden” of showing that it is “absolutely clear” that Oseguera no

longer has a cognizable legal interest in the outcome of this

Petition.

B. The BIA’s ruling was not an abuse of discretion.

We now address whether the BIA abused its discretion by

denying Oseguera’s motion to reopen. On rehearing, Oseguera reiterates many of the same ineffective assistance of counsel arguments presented earlier in this petition for review. Due

2The material that Oseguera submitted to modify the record proves the

point. The Hansen affidavit does not reveal any intention to “abandon” the

prior I-140 application. Thus, while it may have been proper for the

agency to deny the application based on a determination that it had been

abandoned for purposes of compliance with agency regulation, that is not

equivalent to a voluntary withdrawal of the request for relief. 

14266 GRANADOS-OSEGUERA v. MUKASEY
to the statutory bar against discretionary relief in cases where

the petitioner has overstayed the period for voluntary departure, however, the court cannot grant him relief. 

[4] There is no dispute that Oseguera’s motion to reopen

was filed after the period for voluntary departure had elapsed.

Accordingly, the BIA was not simply correct to deny the

motion; it was compelled to do so by the operation of 8

U.S.C. § 1229c(d)(1) (“if an alien is permitted to depart voluntarily under this section and voluntarily fails to depart the

United States within the time period specified, the alien . . .

shall be ineligible, for a period of 10 years, to receive any further relief under this section and sections 1229b, 1255, 1258,

and 1259 of this title.”); see also Dada v. Mukasey, 128 S. Ct.

2307, 2318 (2008) (“Alternatively, if the alien wishes to pursue reopening and remains in the United States to do so, he

or she risks expiration of the statutory period and ineligibility

for adjustment of status, the underlying relief sought.”) (citing

8 U.S.C. § 1229c(d)(1)). 

[5] Moreover, as the complete record indicates, the BIA

was precluded from hearing Oseguera’s arguments that were

premised on “exceptional circumstances,” because the

IIRIRA amendments to the immigration statutes removed any

ability to rely on “exceptional circumstances” in cases where

the petitioner has overstayed the voluntary departure period.

See Serrano v. Gonzales, 469 F.3d 1317, 1319 (9th Cir. 2006)

(“In his motion to reopen, Petitioner sought to excuse his failure to depart based on ‘exceptional circumstances.’ Congress

eliminated the ‘exceptional circumstance’ justification when

it passed the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996. Compare 8 U.S.C. § 1229c(d)

(2006) with id. § 1252b(e)(2)(A) (repealed 1996).”). Likewise, Oseguera’s inability to establish eligibility for relief at

the time he filed his motion to reopen is an independent and

sufficient ground for the BIA’s denial of the motion. See

Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869-70 (9th Cir.

2003) (“prima facie eligibility for the relief sought is a prereqGRANADOS-OSEGUERA v. MUKASEY 14267
uisite for the granting of a motion to reopen”). Thus, the

BIA’s denial of the motion to reopen was appropriate on all

of the grounds stated in its complete order. 

[6] Oseguera counters that both the failure to file a timely

motion to reopen and his incomplete application were the

result of his prior counsel’s ineffectiveness. Even assuming

that Oseguera’s allegations amount to ineffective assistance of

counsel, the statutory bars on relief would nonetheless control

the disposition of his appeal. Prior to the IIRIRA amendments, a failure to timely voluntary depart due to counsel’s

ineffectiveness had been treated as an “exceptional circumstance.” See Varela v. INS, 204 F.3d 1237, 1240 n.6 (9th Cir.

2000) (“Varela’s failure to depart the United States by a voluntary departure deadline—ordinarily a bar to adjustment of

status—may be excused in ‘exceptional circumstances.’ ”).

Oseguera points to no authority that would permit an ineffective assistance of counsel claim to trump the statutory prohibition on “exceptional circumstance” arguments in cases where

the voluntary departure period has passed. Moreover, because

the IIRIRA amendments withdraw the “exceptional circumstances” avenue for relief, there is no prejudice to Oseguera

resulting from the alleged ineffective assistance. See LaraTorres v. Ashcroft, 383 F.3d 968, 973 (9th Cir. 2004) (to prevail on a due process claim founded on ineffective assistance

of counsel, petitioner must demonstrate “ ‘substantial prejudice’ ” resulting from the ineffectiveness). Put differently, the

BIA could not have granted Oseguera relief, so there was no

prejudice resulting from the alleged ineffective assistance.

Finally, because the I-140 Petition was deemed abandoned, on

remand all that the BIA could plausibly accomplish is issuance of a redundant statement that Oseguera still has not demonstrated prima facie eligibility for any discretionary relief. 

III. CONCLUSION

For the reasons stated above, we withdraw our prior opinion and DENY the petition for review. 

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