FILED
NOT FOR PUBLICATION
JAN 10 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMUEL GARCIA VEGA, No. 13-70752
Petitioner, Agency No. A097-579-773
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 10, 2016**
Pasadena, California
Before: RAWLINSON and BEA, Circuit Judges and SEEBORG,*** District Judge.
*
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).
***
The Honorable Richard Seeborg, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
1
Samuel Garcia Vega (Vega) petitions for review of a decision of the Board
of Immigration Appeals (BIA) denying his motion to reopen the proceedings
addressing his application for cancellation of removal. Vega asserts that the BIA
erred in holding that he failed to establish that his counsel was ineffective. Vega
also contends that the BIA and the Immigration Judge (IJ) violated the Due Process
Clause by prejudging the case, failing to consider all the evidence, failing to weigh
all pertinent factors, failing to address all his claims, and failing to provide
reasoned decisions.
We lack jurisdiction over Vega’s claim that the BIA erred by according
“little discretionary weight” to the letter that he purportedly sent to the Superior
Court of Los Angeles, because that claim goes to the “merits basis for a
previously-made discretionary determination.” Fernandez v. Gonzales, 439 F.3d
592, 603 (9th Cir. 2006). Insofar as Vega’s appeal seeks review of the IJ’s
discretionary determinations in the original proceedings, Vega never challenged
those determinations before the BIA on direct review, and he may not challenge
them now on a motion to reopen. Id.
2
We do have jurisdiction to consider Vega’s ineffective-assistance-of-
counsel claim, however. See 8 U.S.C. § 1252(a)(2)(D). We agree with the ruling
of the BIA that counsel’s tactical decision not to reveal Vega’s misrepresentations
during judicial proceedings did not constitute ineffective assistance of counsel.
See Magallanes-Damian v. INS, 783 F.2d 931, 934 (9th Cir. 1986).
PETITION DISMISSED in PART, DENIED in PART.
3