Arnoldo Penaloza v. Eric Holder, Jr. ( 2012 )

FILED
NOT FOR PUBLICATION NOV 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ARNOLDO PENALOZA, No. 10-71306
Petitioner, Agency No. A075-755-350
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.
Arnoldo Penaloza, a native and citizen of Mexico, petitions for review of an
order of the Board of Immigration Appeals (“BIA”) denying his motion to
reconsider the BIA’s denial of his earlier motion to reopen based on a claim of
ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We
*
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).
review for abuse of discretion the BIA’s denial of a motion to reconsider or to
reopen, Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007), and review de
novo due process claims based on ineffective assistance of counsel, Santiago-
Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011). We deny the petition for
review.
The BIA did not abuse its discretion by denying Penaloza’s motion to
reconsider because he did not demonstrate any legal or factual error in the BIA’s
refusal to reopen his case due to his failure to show that his prior attorney’s actions
may have prejudiced the outcome of his appellate proceedings. See Yeghiazaryan
v. Gonzales, 439 F.3d 994, 998 (9th Cir. 2006) (“In filing a motion to reconsider,
the petitioner must ‘specify[] the errors of fact or law in the prior B[IA]
decision . . . .’” (citation omitted)); Nehad v. Mukasey, 535 F.3d 962, 967 (9th Cir.
2008) (“Prejudice only results when counsel’s performance is ‘so inadequate that it
may have affected the outcome of the proceedings.’” (citation omitted)).
Because this determination is dispositive of the present petition for review,
we need not address Penaloza’s remaining contentions regarding his prior
attorney’s performance or his compliance with the procedural requirements for
filing a claim of ineffective assistance of counsel. See Mendez-Alcaraz v.
2 10-71306
Gonzales, 464 F.3d 842, 844 (9th Cir. 2006) (declining to reach nondispositive
challenges to a BIA order).
PETITION FOR REVIEW DENIED.
3 10-71306