FILED
NOT FOR PUBLICATION JUN 30 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VOLODYMYR KUZMENKO, No. 10-73154
Petitioner, Agency No. A098-157-041
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 22, 2015**
Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
Volodymyr Kuzmenko, a native of the former Soviet Union and a citizen of
Ukraine, petitions for review of the Board of Immigration Appeals’ (“BIA”) order
denying his motion to reopen removal proceedings. Our jurisdiction is governed
by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
*
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).
reopen, review for substantial evidence the agency’s factual determinations, and
review de novo constitutional 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 BIA did not abuse its discretion in denying Kuzmenko’s motion to
reopen based on ineffective assistance of counsel, where Kuzmenko failed to
establish prejudice resulting from his former attorney’s alleged ineffective
assistance. See id. at 793 (to prevail on an ineffective assistance of counsel claim,
a petitioner must demonstrate that counsel failed to perform with sufficient
competence and that he was prejudiced by counsel’s performance). The record
does not support Kuzmenko’s contention that his attorney failed to understand that
his claim was for an imputed political opinion, and because substantial evidence
supports the IJ’s determination that, even if Kuzmenko had been deemed credible,
his claim for asylum and related relief fails on the merits, Kuzmenko cannot
establish prejudice resulting from any alleged attorney errors related to the IJ’s
adverse credibility determination.
We lack jurisdiction to consider Kuzmenko’s unexhausted contention that
his attorney erred in earlier filing a motion to reopen to apply for adjustment of
status. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks
2 10-73154
jurisdiction to consider legal claims not presented in an alien’s administrative
proceedings before the agency).
Further, we deny Kuzmenko’s request for judicial notice of non-relevant,
extra-record information discussed in his opening brief. See 8 U.S.C.
§ 1252(b)(4)(A) (“the court of appeals shall decide the petition only on the
administrative record on which the order of removal is based”); Ruiz v. City of
Santa Maria, 160 F.3d 543, 548 n.13 (9th Cir. 1998) (judicial notice is
inappropriate where the facts to be noticed are not relevant to the disposition of the
issues before the court).
In light of this disposition, we do not reach Kuzmenko’s remaining
contentions.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 10-73154