FILED
NOT FOR PUBLICATION NOV 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MUKESH CHAND, No. 07-71379
07-74216
Petitioner,
Agency No. A097-113-377
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 19, 2010 **
Before: O’SCANNLAIN, LEAVY, and TALLMAN, Circuit Judges.
In these consolidated petitions for review, Mukesh Chand, a native and
citizen of Fiji, petitions for review of the Board of Immigration Appeals’ (“BIA”)
orders dismissing his appeal from an immigration judge’s (“IJ”) decision denying
his applications for asylum, withholding of removal, and protection under the
*
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. See Fed. R. App. P. 34(a)(2).
Convention Against Torture (“CAT”) (No. 07-71379), and denying his motion to
reopen (No 07-74216). Our jurisdiction is governed by 8 U.S.C. § 1252. We
review de novo claims of due process violations, Colmenar v. INS, 210 F.3d 967,
971 (9th Cir. 2000), and we review for abuse of discretion the denial of a motion to
reopen, Reyes v. Ashcroft, 358 F.3d 592, 595 (9th Cir. 2004). We deny in part and
dismiss in part the petition for review in No. 07-71379, and we deny the petition
for review in No. 07-74216.
The BIA did not err in rejecting Chand’s due process claim of inadequate
translation because Chand did not demonstrate any translation inadequacies either
prevented him from presenting his claims or caused an omission that would have
altered the outcome. See Kotasz v. INS, 31 F.3d 847, 850 n.2 (9th Cir. 1994).
We lack jurisdiction to consider Chand’s claim that the IJ was not a neutral
fact-finder because Chand failed to exhaust this before the BIA. See Barron v.
Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).
The BIA did not err in rejecting Chand’s contention regarding his former
attorney’s claimed ineffective assistance, because Chand failed to establish his
attorney’s representation caused the several inconsistencies in Chand’s testimony
noted in the IJ’s decision, or that he was prevented from reasonably presenting his
case. See Torres-Chavez v. Holder, 567 F.3d 1096, 1100 (9th Cir. 2009).
2 07-71379
Chand’s contention that the BIA violated due process by summarily
affirming the IJ decision is belied by the BIA’s reasoned decision and, moreover, is
unavailing. See 8 C.F.R. § 1003.1(e)(4)(i) (governing the BIA’s streamlining
authority).
The BIA did not abuse its discretion in denying Chand’s motion to reopen
because the BIA considered the evidence submitted, determined Chand failed to set
forth any new facts or present any new evidence warranting reopening, see
8 C.F.R. § 1003.2(c)(1) (a motion to reopen “shall state the new facts that will be
proven at a hearing to be held if the motion is granted and shall be supported by
affidavits or other evidentiary material”), and acted within its broad discretion in
determining the evidence was insufficient to warrant reopening, see Singh v. INS,
295 F.3d 1037, 1039 (9th Cir. 2002) (the BIA’s denial of a motion to reopen shall
be reversed if it is “arbitrary, irrational, or contrary to law.”).
Finally, the BIA did not abuse its discretion in construing Chand’s motion to
reopen alternatively as a motion to reconsider and denying it as untimely. See 8
C.F.R. § 1003.2(b)(2).
No. 07-71379: PETITION FOR REVIEW DENIED in part;
DISMISSED in part.
No. 07-74216: PETITION FOR REVIEW DENIED.
3 07-71379