FILED
NOT FOR PUBLICATION NOV 30 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T O F AP PE ALS
FOR THE NINTH CIRCUIT
HUA XIE, No. 07-70109
Petitioner, Agency No. A075-702-736
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2009 **
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Hua Xie, a native and citizen of China, petitions for review of the Board of
Immigration Appeals’ (“BIA”) order denying her motion to reopen based on
ineffective assistance of counsel. We have jurisdiction pursuant to 8
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
RB/Research
U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen,
and de novo claims of due process violations, including claims of ineffective
assistance of counsel in immigration proceedings. Mohammed v. Gonzales, 400
F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review.
We agree with the BIA’s conclusion that Xie did not demonstrate she
received ineffective assistance from former counsel for his failure to file a motion
to reopen based on adjustment of status. See id. at 793-94 (ineffective assistance of
counsel amounts to a violation of due process if “the proceeding was so
fundamentally unfair that the alien was prevented from reasonably presenting his
case”) (internal citation omitted). Xie admits she hired a different attorney to
prepare her adjustment of status application, and the record indicates the
application was not completed until October 31, 2005, after the expiration of the
90-day motions deadline.
We also agree with the BIA’s determination that former counsel’s failure to
inform Xie of the BIA’s August 10, 2005, decision denying reopening did not
result in prejudice. See id.
Xie’s remaining contentions are unavailing.
PETITION FOR REVIEW DENIED.
RB/Research 2 07-70109