FILED
NOT FOR PUBLICATION MAR 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
IDANIA MAYBELI ROSALES-PICEN, No. 07-72562
Petitioner, Agency No. A076-680-122
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 18, 2011
San Francisco, California
Before: WALLACE, NOONAN, and CLIFTON, Circuit Judges.
Idania Rosales-Picen (“Rosales-Picen”) petitions for review of a decision of
the Board of Immigration Appeals (“BIA”) denying her motion to reopen removal
proceedings based on ineffective assistance of counsel. We have jurisdiction under
8 U.S.C. § 1252.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-311.
We review ineffective assistance of counsel claims de novo and findings of
fact regarding counsel’s performance for substantial evidence. Lin v. Ashcroft, 377
F.3d 1014, 1024 (9th Cir. 2004). Ineffective assistance of counsel claims require a
showing of prejudice to succeed. Id. Upon review of the record, we conclude that
Rosales-Picen did not demonstrate prejudice arising out of prior counsel’s failure
properly to investigate and present Rosales-Picen’s asylum claim based on her fear
of persecution by the guerrillas in Guatemala. The new evidence Rosales-Picen
offered in support of her motion to reopen does not undermine the agency’s prior
conclusions that (1) Rosales-Picen did not establish past persecution, and (2)
Rosales-Picen failed to prove that she could not reasonably relocate to a place
within Guatemala where she would be safe from the guerrillas.
Substantial evidence supports the BIA’s finding that “it was not clear that a
claim based on domestic violence [was] sustainable in 1999.” Accordingly, the
BIA did not err when it concluded that prior counsel Miguel Gadda’s failure to
present a domestic-violence based asylum claim in 1999 did not amount to
ineffective assistance.
The petition for review is DENIED.
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