Martinez-Martinez v. Holder ( 2010 )

FILED
NOT FOR PUBLICATION JUL 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VERONICA MARTINEZ-MARTINEZ, No. 08-70658
Petitioner, Agency No. A099-438-918
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 29, 2010 **
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Veronica Martinez-Martinez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to
remand and dismissing her appeal from an immigration judge’s decision denying
her application for cancellation of removal. We have jurisdiction under 8 U.S.C.
*
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).
§1252. We review for abuse of discretion the denial of a motion to remand, Reyes
v. Ashcroft, 358 F.3d 592, 595 (9th Cir. 2004), for substantial evidence the
agency’s determination of continuous physical presence, Landin-Zavala v.
Gonzales, 488 F.3d 1150, 1151 (9th Cir. 2007), and de novo due process claims,
Ram v. INS, 243 F.3d 510, 516 (9th Cir. 2001). We deny the petition for review.
The BIA did not abuse its discretion in denying Martinez-Martinez’s motion
to remand based on ineffective assistance of counsel because she did not establish
that prejudice resulted from the alleged ineffective assistance. See Rojas-Garcia v.
Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (to prevail on an ineffective assistance
of counsel claim a petitioner must demonstrate prejudice).
Substantial evidence supports the agency’s determination that Martinez-
Martinez did not meet the continuous physical presence requirement where she
repeatedly testified that she entered the United States between May 10, 1996, and
May 20, 1996, and Martinez was served with a Notice to Appear on May 2, 2006.
See 8 U.S.C. § 1229b(b)(1)(A). Martinez-Martinez’s due process claim therefore
fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error for a
petitioner to prevail on a due process claim).
Martinez-Martinez’s remaining contentions are unpersuasive.
PETITION FOR REVIEW DENIED.
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