Araceli Santamaria-Cano v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION NOV 16 2012

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

FOR THE NINTH CIRCUIT

ARACELI SANTAMARIA-CANO, No. 09-71580

Petitioner, Agency No. A077-082-114

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

Respondent.

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

Submitted November 13, 2012 **

Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.

Araceli Santamaria-Cano, a native and citizen of Mexico, petitions for

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

reopen removal proceedings based on ineffective assistance of counsel. Our

jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the

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

Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part

and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying Santamaria-Cano’s motion

to reopen for failure to establish prejudice, where she failed to show that the

alleged ineffective assistance may have affected the outcome of her proceedings.

See id. at 793 (requiring prejudice to prevail on ineffective assistance claim); see

also Lara-Torres v. Ashcroft, 383 F.3d 968, 973-75 (9th Cir. 2004), amended by

404 F.3d 1105 (9th Cir. 2005) (no ineffective assistance where representative’s

incorrect advice led to the institution of removal proceedings and petitioner was

ineligible for relief).

We lack jurisdiction to review Santamaria-Cano’s contention that she

suffered ineffective assistance from the attorney she hired to file her previous

petition for review because she failed to raise this issue before the agency and

thereby failed to exhaust her administrative remedies. See Barron v. Ashcroft, 358

F.3d 674, 678 (9th Cir. 2004) (this court lacks jurisdiction to review contentions

not raised before the agency).

Santamaria-Cano’s remaining contentions are unavailing.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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