Shuzhu Huang v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION JUN 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SHUZHU HUANG, No. 08-74814
Petitioner, Agency No. A072-799-125
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Shuzhu Huang, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying his motion to reconsider its
denial of his second motion to reopen, based on ineffective assistance of counsel.
*
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).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of
discretion the denial of a motion to reconsider, Cano-Merida v. INS, 311 F.3d 960,
964 (9th Cir. 2002), and we review de novo questions of law, including claims of
due process violations due to ineffective assistance of counsel, Mohammed v.
Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in
part the petition for review.
The BIA did not abuse its discretion in denying Huang’s motion to
reconsider because Huang failed to identify any dispositive errors of fact or law in
the BIA’s August 20, 2008, order. See 8 C.F.R. § 1003.2(b)(1). In particular, we
agree that any ineffective assistance of counsel related to Huang’s request for a
joint motion to reopen did not result in prejudice. See Mohammed, 400 F.3d at
793-94 (to prevail on an ineffective assistance of counsel claim, a petitioner must
demonstrate prejudice). Huang’s contention that the BIA applied an overly
stringent prejudice standard is not persuasive. Huang’s ineffective assistance of
counsel claim based upon counsel’s failure to properly file and expedite his I-130
visa petition fails because any error does not relate “to the fundamental fairness of
an ongoing proceeding.” See Balam-Chuc v. Mukasey, 547 F.3d 1044, 1050-51
(9th Cir. 2008).
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We lack jurisdiction to review Huang’s contentions regarding the BIA’s
August 20, 2008, order, because Huang did not file a timely petition for review of
that order. See 8 U.S.C. § 1252(b)(1); Minasyan v. Mukasey, 553 F.3d 1224, 1229
(9th Cir. 2009).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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