Fernando Moreno Mendez v. Eric Holder, Jr. , 584 F. App'x 550 ( 2014 )

FILED
NOT FOR PUBLICATION AUG 18 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO MORENO MENDEZ; No. 11-71702
MARIA DEL CARMEN MORENO
GOMEZ, Agency Nos. A095-187-899
A095-187-900
Petitioners,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 13, 2014**
Before: SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.
Fernando Moreno Mendez and Maria Del Carmen Moreno Gomez, natives
and citizens of Mexico, petition for review of an order of the Board of Immigration
Appeals (“BIA”) denying their motion to reopen removal proceedings. Our
*
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).
jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law
and review for abuse of discretion the denial of a motion to reopen. 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 correctly analyzed petitioners’ motion to reopen based on
ineffective assistance of counsel in accordance with the governing statutory and
regulatory scheme. See 8 C.F.R. § 1003.2(c); see also Mohammed, 400 F.3d
at 792 (“[A] motion to reopen . . . is the proper ‘avenue ordinarily available to
pursue ineffective assistance of counsel claims.’”).
The BIA did not abuse its discretion by denying petitioners’ motion to
reopen due to lack of prejudice, where petitioners failed to establish plausible
grounds for the relief that they seek. See Serrano v. Gonzales, 469 F.3d 1317,
1319 (9th Cir. 2006) (“To assert a valid due process ineffective assistance of
counsel claim, a petitioner must demonstrate prejudice; namely, he must show that
he has ‘plausible grounds for relief.’” (citation omitted)).
In light of this disposition, we need not reach petitioners’ contentions
regarding due diligence. See Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844
(9th Cir. 2006) (declining to reach nondispositive challenges to a BIA order).
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The BIA also did not abuse its discretion by denying petitioners’ request for
reissuance of its decision of March 6, 2006. The record belies petitioners’
contention that the BIA considered their request only under its sua sponte
authority. See Mendez-Castro v. Mukasey, 552 F.3d 975, 980 (9th Cir. 2009)
(rejecting a contention belied by the record). To the extent petitioners challenge
the BIA’s refusal to exercise its sua sponte authority to reissue its decision, we lack
jurisdiction to consider these contentions. See Toufighi v. Mukasey, 538 F.3d 988,
993 n.8 (9th Cir. 2008).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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