Avila Avila v. Holder

FILED NOT FOR PUBLICATION FEB 23 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JOSE LUIS AVILA AVILA, No. 08-70221 Petitioner, Agency No. A097-854-047 v. MEMORANDUM * ERIC H. HOLDER Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 16, 2010 ** Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges. Jose Luis Avila Avila, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252. We * 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). /Research review for abuse of discretion the denial of a motion to reopen, and review de novo questions of law, including claims of due process violations due to ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review. The BIA did not abuse its discretion by denying Avila’s motion to reopen, because the BIA considered the evidence he submitted and acted within its broad discretion in determining that the evidence was insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (The BIA’s denial of a motion to reopen shall be reversed if it is “arbitrary, irrational, or contrary to law.”). We agree with the BIA’s conclusion that Avila failed to establish that his former representative’s conduct resulted in prejudice, and therefore his ineffective assistance of counsel claim fails. See Mohammed, 400 F.3d at 793 (to prevail on an ineffective assistance of counsel claim, a petitioner must demonstrate prejudice). PETITION FOR REVIEW DENIED. /Research 2 08-70221