Imran Khan v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION OCT 15 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

IMRAN KHAN, No. 11-70679

Petitioner, Agency No. A078-650-715

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Submitted October 9, 2012**

Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.

Imran Khan, a native and citizen of Fiji, petitions for review of the Board of

Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration

judge’s 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

*
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).
a motion to reopen and review de novo claims of due process violations.

Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny the petition

for review.

The BIA did not abuse its discretion in denying Khan’s motion to reopen

based on ineffective assistance by his three former attorneys. Khan did not

establish actual deficient performance by his first attorney, where the attorney

withdrew his applications for relief and accepted voluntary departure to allow

petitioner to immigrate to Canada to join his Canadian citizen wife. See Torres-

Chavez v. Holder, 567 F.3d 1096, 1100-02 (9th Cir. 2009). As to the subsequent

attorneys, Khan did not establish prejudice from their failure to file a motion to

reopen, where his declaration states that he met with the attorneys after the

applicable filing deadline. See 8 C.F.R. § 1003.2(c)(2) (a motion to reopen must

be filed within 90 days of the final administrative order); Mohammed, 400 F.3d at

793-94 (prejudice results when counsel’s actions may have affected the outcome of

proceedings).

PETITION FOR REVIEW DENIED.

2 11-70679