Joel Fernandez-Mendoza v. Jefferson Sessions

FILED
NOT FOR PUBLICATION FEB 22 2017

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOEL FERNANDEZ-MENDOZA, No. 14-73515

Petitioner, Agency No. A092-752-739

v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted February 14, 2017**

Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.

Joel Fernandez-Mendoza, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to

reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of

discretion the denial of a motion to reopen, and we review de novo questions of

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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 or violate due process in denying

Fernandez-Mendoza’s motion to reopen based on ineffective assistance of counsel,

where he failed to establish prejudice resulting from his prior attorney’s alleged

ineffective assistance. See id. at 793 (to prevail on an ineffective assistance of

counsel claim, a petitioner must demonstrate that he was prejudiced by counsel’s

performance); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error

and prejudice to prevail on a due process claim). We reject Fernandez-Mendoza’s

contention that the BIA applied an incorrect legal standard in its prejudice

determination. See Mendez-Castro v. Mukasey, 552 F.3d 975, 980 (9th Cir. 2009)

(the agency applies the correct legal standard where it expressly cites and applies

relevant case law in rendering its decision).

Because the prejudice determination is dispositive, the BIA did not need to

address Fernandez-Mendoza’s contentions regarding his prior attorney’s

performance. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (“As a

general rule courts and agencies are not required to make findings on issues the

decision of which is unnecessary to the results they reach.” (citation omitted)).

PETITION FOR REVIEW DENIED.

2 14-73515