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NOT FOR PUBLICATION JUN 30 2015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
JOSE LUIS AVILA-AVILA, No. 13-72458
Petitioner, Agency No. A044-367-470
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.
Jose Luis Avila-Avila, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) order of removal and denying his motion to remand.
Our jurisdiction is governed by 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 remand, and review de novo constitutional
claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005); Movsisian
v. Ashcroft, 395 F.3d 1095, 1097-98 (9th Cir. 2005). We deny in part and dismiss
in part the petition for review.
The BIA did not abuse its discretion or violate due process in denying Avila-
Avila’s motion to remand based on ineffective assistance of counsel, where Avila-
Avila failed to establish prejudice resulting from his former attorney’s
performance. See Mohammed at 793 (to prevail on an ineffective assistance of
counsel claim, petitioner must demonstrate that he was prejudiced by counsel’s
performance); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a
due process challenge, a petitioner must show error and prejudice). Avila-Avila
waived any challenge to the agency’s determination that his attorney’s alleged
failure to obtain a continuance resulted in prejudice, see Lopez-Vasquez v. Holder,
706 F.3d 1072, 1079-80 (9th Cir. 2013) (a petitioner waives a contention by failing
to raise it in the opening brief), and failed to exhaust his contention that his former
attorney failed to file an application for withholding of removal and protection
under the Convention Against Torture (“CAT”), resulting in prejudice, see Tijani v.
Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction to
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consider legal claims not presented in petitioner’s administrative proceedings
before the agency).
The BIA also did not abuse its discretion or violate due process in denying
Avila-Avila’s motion to remand to apply for withholding of removal and CAT
relief, where Avila-Avila failed to establish that the evidence he submitted was not
available or could not have been obtained at the time of his removal hearing. See 8
C.F.R. § 1003.2(c)(1) (requiring “that evidence sought to be offered is material and
was not available and could not have been discovered or presented at the former
hearing”); Lata, 204 F.3d at 1246. Avila-Avila failed to exhaust his contention
that his former attorney’s alleged ineffectiveness prevented him from submitting
this evidence at his hearing. See Tijani, 628 F.3d at 1080.
In his opening brief, Avila-Avila fails to raise, and therefore has waived, any
distinct challenge to the BIA’s dismissal of his direct appeal from the IJ’s order of
removal. See Lopez-Vasquez, 706 F.3d at 1079-80.
In light of this disposition, we do not reach Avila-Avila’s remaining
contentions.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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