Martinez-Maldonado v. Ashcroft , 102 F. App'x 105 ( 2004 )

MEMORANDUM ^**

Mario Martinez-Maldonado, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals (“BIA”) declining to accept his untimely appeal on certification under 8 C.F.R. § 1003.1(c) and reopen proceedings based on ineffective assistance of counsel. Because the transitional rules apply, Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997), we have jurisdiction under 8 U.S.C. § 1105a(a). We review for abuse of discretion, and will reverse only if the BIA’s decision was “arbitrary, irrational, or contrary to law.” Caruncho v. INS, 68 F.3d 356, 360 (9th Cir.1995). We deny the petition for review.

The BIA did not abuse its discretion in denying Martinez-Maldonado’s motion because he failed to demonstrate that he was prejudiced by counsel’s performance. See Iturribarria v. INS, 321 F.3d 889, 901 (9th Cir.2003) (explaining that petitioner must show prejudice to demonstrate ineffective assistance of counsel); see also 8 C.F.R. § 1003.1(c); Shamsi v. INS, 998 F.2d 761, 762 n. 2 (9th Cir.1993) (per curiam).

We do not consider petitioner’s newly raised contentions regarding prejudice because he did not raise them to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 676-78 (9th Cir.2004).

PETITION FOR REVIEW DENIED.

** The disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.