FILED
NOT FOR PUBLICATION MAY 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE JOAQUIN GUTIERREZ, No. 09-73087
Petitioner, Agency No. A078-018-624
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 20, 2011 **
Before: RYMER, THOMAS, and PAEZ, Circuit Judges.
Jose Joaquin Gutierrez, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen. We have jurisdiction udner 8 U.S.C. § 1252. We review for abuse of
*
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).
discretion the denial of a motion to reopen, Ray v. Gonzales, 439 F.3d 582, 586
(9th Cir. 2006), and we deny the petition for review.
In its order denying his motion to reopen based on ineffective assistance of
counsel, the BIA noted that Gutierrez had failed to provide criminal records to
rebut his prior admission before the immigration judge that he had two controlled
substance convictions. The BIA thus concluded that even assuming arguendo that
Gutierrez’s prior counsel failed to perform with sufficient competence, Gutierrez
could not demonstrate prejudice because his convictions rendered him
inadmissable under 8 U.S.C. § 1182(a)(2)(A)(i)(II) and therefore ineligible for
adjustment of status under 8 U.S.C. § 1255(i)(2)(A).
In his opening brief, Gutierrez argues for the first time that he was not
actually convicted of any controlled substance offenses and presents this court with
conviction records to support this argument. We may not consider these
conviction documents in deciding the petition for review as they are not part of the
administrative record. See Fisher v. INS, 79 F.3d 955, 964 (9th Cir. 1996) (en
banc) (evidence outside record may be considered only if the BIA considered it, or
if the BIA abused its discretion in denying motion to consider it).
Because Gutierrez did not demonstrate prejudice before the BIA, the BIA
did not abuse its discretion in denying his motion to reopen based on the record
2 09-73087
before it. See Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999) (no prejudice
where petitioner failed to describe the evidence that his counsel incompetently
failed to introduce); see also Esquivel-Garcia v. Holder, 593 F.3d 1025, 1030 (9th
Cir. 2010) (approving reliance on an alien’s admission that he had been convicted
of a controlled substance offense in denying application for adjustment of status).
PETITION FOR REVIEW DENIED.
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