Sergio Ahuatzin-Morales v. Eric Holder, Jr. , 519 F. App'x 449 ( 2013 )

FILED
NOT FOR PUBLICATION MAY 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SERGIO AHUATZIN-MORALES, No. 11-73072
Petitioner, Agency No. A077-290-717
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 14, 2013 **
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Sergio Ahuatzin-Morales, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his motion to reopen removal
proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252.
*
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 review for abuse of discretion the denial of a motion to reopen, and review de
novo constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th
Cir. 2005). We deny the petition for review.
Ahuatzin-Morales contends that the agency abused its discretion by denying
his motion to reopen, because denying the motion without ensuring he had access
to the record of proceedings violated his right to due process. This claim lacks
merit because Ahuatzin-Morales has not established prejudice resulting from the
alleged violation. See Cano-Merida v. INS, 311 F.3d 960, 965 (9th Cir. 2002)
(requiring prejudice to establish a due process violation); see also Robleto-Pastora
v. Holder, 591 F.3d 1051, 1062 (9th Cir. 2010) (due process claim relating to
inability to obtain immigration records failed where petitioner could not show any
error potentially affected his eligibility for relief).
Ahuatzin-Morales’ contention that the BIA violated his due process rights
by failing to consider that the IJ made an incorrect factual finding also fails for lack
of prejudice. See Cano-Merida, 311 F.3d at 965. Finally, Ahuatzin-Morales’
contention that the BIA failed to consider his argument that he was prejudiced
when the IJ ruled on his motion to reopen without ensuring he had access to the
record is belied by the record.
PETITION FOR REVIEW DENIED.
2 11-73072