NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 2 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FELIX HUMBERTO SARAVIA, No. 14-72218
Petitioner, Agency No. A070-955-456
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Felix Humberto Saravia, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).
*
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).
We deny the petition for review.
Our jurisdiction to review the BIA’s discretionary decision not to reopen
proceedings sua sponte is limited to “reviewing the reasoning behind the decisions
for legal or constitutional error.” See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir.
2016).
The BIA did not err in determining this court’s decision in Ceron v. Holder,
747 F.3d 773 (9th Cir. 2014) (en banc) does not constitute a material change in
law. Id. (remanding to the BIA to consider whether conviction under California
Penal Code § 245(a)(1) is categorically a crime involving moral turpitude).
Contrary to Saravia’s contentions, the BIA did not err in its interpretation of
Ledezma-Galicia v. Holder, 636 F.3d 1059 (9th Cir. 2010), and determination that
it was proper to apply the aggravated felony definition to Saravia’s June 1986
conviction for purposes of whether he was statutorily eligible for relief. See id. at
1065 (recognizing that the classification of a crime as an aggravated felony is a
separate issue from removability for that crime and leaving intact settled circuit
law that a conviction prior to November 1988 may be considered an “aggravated
felony” under current immigration law); see also Becker v. Gonzales, 473 F.3d
1000, 1002-03 (9th Cir. 2007).
Saravia contends he was deprived of the effective assistance of counsel,
based upon prior counsel’s alleged failure to raise an argument under Ledezma-
2 14-72218
Galicia, 636 F.3d 1059, before the agency, and failure to timely file a petition for
review of the BIA’s order dismissing his appeal so that it would have been pending
when Ceron, 747 F.3d 773, was decided. The BIA did not err in determining that
Saravia failed to establish prejudice from this alleged ineffective assistance. See
Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826-27 (9th Cir. 2003) (requiring
prejudice to state a valid claim of ineffective assistance of counsel, and explaining
the presumption of prejudice for failing to file an appeal is rebutted when petitioner
does not show plausible grounds for relief).
PETITION FOR REVIEW DENIED.
3 14-72218