Rodrigo Aguilar Vergara v. Eric H. Holder Jr.

FILED NOT FOR PUBLICATION MAR 09 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT RODRIGO AGUILAR-VERGARA, No. 08-71856 Petitioner, Agency No. A079-535-342 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 15, 2011 ** Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges. Rodrigo Aguilar-Vergara, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Malty v. Ashcroft, * 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). 381 F.3d 942, 945 (9th Cir. 2004), and we review de novo ineffective assistance of counsel claims, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review. The BIA did not abuse its discretion in denying Aguilar-Vergara’s motion to reopen because Aguilar-Vergara failed to show he was prejudiced by his former counsel’s withdrawal of his asylum application. See Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858-59 (9th Cir. 2004) (to reopen because of ineffective assistance of counsel, petitioners must show that counsel’s performance was so inadequate that it may have affected the outcome of the proceedings); see also 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”). Aguilar-Vergara’s contentions that the BIA erred by applying an incorrect legal standard and by making an improper adverse credibility determination are belied by the record. PETITION FOR REVIEW DENIED. 2 08-71856