NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 1 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CESAR LEYVA-HERNANDEZ, No. 16-70448
Petitioner, Agency No. A096-221-514
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 24, 2017**
Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.
Cesar Leyva-Hernandez, 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 under 8 U.S.C. § 1252. We review for
abuse of discretion the denial of a motion to reopen and review de novo questions
*
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).
of law. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). We deny the petition
for review.
The BIA did not err or abuse its discretion in denying Leyva-Hernandez’s
motion to reopen, based on ineffective assistance of counsel, for failure to
demonstrate prejudice, where he has not explained how he might have successfully
challenged the BIA’s prior decision before this court had the prior petition been
timely filed. See 8 C.F.R. § 214.14(c) (outlining procedures to apply for a U Visa);
Mohammed v. Gonzales, 400 F.3d 785, 793-94 (9th Cir. 2005) (to demonstrate
prejudice, alien must show counsel’s performance was so inadequate that it may
have affected the outcome of proceedings). In light of this determination, Leyva-
Hernandez’s motion to take judicial notice (Docket Entry No. 19) is denied.
The BIA also did not err in declining to reopen based on Leyva-Hernandez’s
contention that his former attorney was ineffective for failing to seek prosecutorial
discretion, where prosecutorial discretion is under the authority of the Department
of Homeland Security. See Hernandez-Mancilla, 633 F.3d at 1182 (finding no
ineffective assistance of counsel due process violation, where the actions of
counsel occurred outside the context of removal proceedings).
Any errors in the BIA’s decision are harmless. See Vides-Vides v. INS, 783
F.2d 1463, 1469 (9th Cir. 1986) (as amended) (applying the harmless error
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standard to agency’s procedural error).
PETITION FOR REVIEW DENIED.
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