FILED
NOT FOR PUBLICATION DEC 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CESAR HERNANDEZ; MATILDE No. 11-71024
VELAZQUEZ DE HERNANDEZ,
Agency Nos. A076-674-321
Petitioners, A076-674-413
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 19, 2012 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Cesar Hernandez and Matilde Velazquez De Hernandez, natives and citizens
of Mexico, petition for review of an order of the Board of Immigration Appeals
(“BIA”) denying their motion to reopen alleging ineffective assistance of counsel.
*
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).
We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
BIA’s denial of a motion to reopen and review de novo claims of ineffective
assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.
2005). We deny the petition for review.
The BIA did not abuse its discretion by denying petitioners’ motion to
reopen for failure to establish prejudice, where petitioners did not present evidence
that any additional affidavits or testimony that their first two attorneys had
allegedly failed to introduce would have reconciled petitioners’ vague and
inconsistent testimony asserting that they possessed the ten years of continuous
physical presence required for cancellation of removal, see id. at 793-94
(“[P]rejudice results when the performance of counsel was so inadequate that it
may have affected the outcome of the proceedings.” (citation and internal quotation
marks omitted)). The BIA also did not apply an incorrect legal standard for
assessing prejudice by requiring petitioners to identify objective, material evidence
of their physical presence that their first two former attorneys allegedly failed to
introduce at the removal hearing. See Ortiz v. INS, 179 F.3d 1148, 1153-54
(9th Cir. 1999) (rejecting a claim of ineffective assistance of counsel for failure to
establish prejudice where the petitioners did not explain what testimonial evidence
their attorney allegedly should have elicited during their removal hearing).
2 11-71024
Finally, the BIA did not improperly fail to consider petitioners’ claim that
their third attorney was ineffective by not timely filing a motion to reopen alleging
ineffective assistance from petitioners’ first two attorneys, because this issue was
immaterial to the disposition of petitioners’ request for reopening. See INS v.
Bagamasbad, 429 U.S. 24, 25 (1976) (“[C]ourts and agencies are not required to
make findings on issues the decision of which is unnecessary to the results they
reach.”).
In light of our disposition, we decline to address whether petitioners’ former
attorneys’ performance was ineffective. See Mendez-Alcaraz v. Gonzales,
464 F.3d 842, 844 (9th Cir. 2006) (declining to reach nondispositive challenges to
a BIA order).
PETITION FOR REVIEW DENIED.
3 11-71024