Bernardo Salado-Alva v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION DEC 19 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERNARDO SALADO-ALVA, AKA No. 11-72112
Bernie Salado,
Agency No. A024-221-509
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 10, 2014**
San Francisco, California
Before: KOZINSKI, RAWLINSON and MURGUIA, Circuit Judges.
Petitioner Bernardo Salado-Alva (“Salado”), a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying
his motion to reopen based on ineffective assistance of counsel. We review the
*
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).
denial of a motion to reopen for abuse of discretion and review due process claims
de novo. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We have
jurisdiction under 8 U.S.C. § 1252, and deny the petition for review.
The BIA did not abuse its discretion in denying Salado’s motion to reopen
because he failed to establish that the alleged ineffective assistance of counsel
affected the outcome of his proceedings. See Correa-Rivera v. Holder, 706 F.3d
1128, 1133 (9th Cir. 2013) (to prevail on an ineffective assistance of counsel claim
a petitioner must demonstrate prejudice). The record unequivocally establishes
that Salado was convicted of a removable offense. See United States v.
Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999) (holding that a conviction
under California Penal Code Section 288(a) constitutes “sexual abuse of a minor”
under 8 U.S.C. § 1101(a)(43), a removable offense under 8 U.S.C.
§ 1227(a)(2)(A)(iii)). Salado, thus, cannot establish prejudice resulting from his
attorney’s failure to challenge the sufficiency of the evidence proffered by the
government to establish his removability. See Lata v. INS, 204 F.3d 1241, 1246
(9th Cir. 2000). It follows that the denial of Salado’s motion to reopen did not
violate due process. See id. (requiring “error and substantial prejudice” for a due
process violation).
DENIED.