FILED
NOT FOR PUBLICATION MAR 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SUSSAN NG; LIN XIE, No. 07-74081
Petitioners, Agency Nos. A098-176-997
A098-176-996
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2011 **
Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.
Sussan Ng and Lin Xie, natives of China and citizens of Australia, petition
pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing
their appeal from an immigration judge’s removal order. Our jurisdiction is
governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s
*
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).
factual findings, and de novo claims of due process violations, including
ineffective assistance of counsel claims. Mohammed v. Gonzales, 400 F.3d 785,
791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.
The record does not compel the conclusion that petitioners timely extended
or changed their status prior to the expiration of their nonimmigrant visas on June
30, 2005. See Singh-Kaur v. INS, 183 F.3d 1147, 1150 (9th Cir. 1999) (a contrary
result is not compelled where there is “[t]he possibility of drawing two inconsistent
conclusions from the evidence”) (internal quotation marks and citation omitted).
The BIA correctly concluded that petitioners’ ineffective assistance of
counsel claim fails because they have not demonstrated prejudice. See
Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (to prevail on an
ineffective assistance of counsel claim a petitioner must demonstrate prejudice).
We lack jurisdiction to review petitioners’ unexhausted contention that they
are entitled to equitable tolling. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th
Cir. 2004) (explaining that this court lacks jurisdiction to review contentions not
raised before the agency).
To the extent it is raised, we lack jurisdiction to review the BIA’s January
29, 2008, order denying petitioners’ motion to reconsider because they failed to
2 07-74081
timely petition this court for review of that decision. See Singh v. INS, 315 F.3d
1186, 1188 (9th Cir. 2003).
Petitioners’ remaining contentions are unavailing.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 07-74081