NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVADOR MACIAS-GARCIA, AKA No. 12-71087
Salvador Macias Garcia,
Agency No. A021-621-964
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 11, 2019**
Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.
Salvador Macias-Garcia, a native and citizen of Mexico, seeks 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 review de novo questions of law. Mohammed v.
*
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).
Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review.
As a threshold matter, we grant Macias-Garcia’s motion to file a
supplemental brief (Docket Entry No. 27) and have considered the brief.
The BIA did not abuse its discretion in denying Macias-Garcia’s motion to
reopen based on ineffective assistance of counsel where he has not shown how his
former counsel’s failure to challenge removability on appeal may have affected the
outcome of his proceedings. See id. at 793-94 (prejudice results when “the
performance of counsel was so inadequate that it may have affected the outcome of
the proceedings” (emphasis in original, internal quotation marks and citation
omitted)); see also Coronado v. Holder, 759 F.3d 977, 984-85 (9th Cir. 2014)
(holding that California Health & Safety Code § 11377(a) is divisible and subject
to the modified categorical approach); United States v. Martinez-Lopez, 864 F.3d
1034, 1041 (9th Cir. 2017) (en banc) (on revisited analysis in light of intervening
Supreme Court precedent, holding that a similar California controlled substance
statute is divisible with respect to the listed substances); United States v. Torre-
Jimenez, 771 F.3d 1163, 1169 (9th Cir. 2014) (the phrase “as charged in the
Information (or Indictment)” is not necessary where the documents are
unambiguous; finding that an abstract of judgment that stated defendant was
convicted of count 1, and count 1 on the complaint specified the substance
involved was cocaine, was sufficient to establish the substance involved);
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Cabantac, v. Holder, 736 F.3d 787, 793-94 (9th Cir. 2013) (Under the modified
categorical approach, where “the abstract of judgment or minute order specifies
that a defendant pleaded guilty to a particular count of the criminal complaint or
indictment, we can consider the facts alleged in that count.”). We reject Macias-
Garcia’s contention that the BIA was required to apply a presumption of prejudice.
Contrary to Macias-Garcia’s contention, the BIA did not find that his
testimony in support of his application for cancellation of removal independently
established his removability for a controlled substance offense.
In light of these determinations, we need not, and the BIA was not required
to, address Macias-Garcia’s contentions regarding equitable tolling of the filing
deadline. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).
PETITION FOR REVIEW DENIED.
3 12-71087