Ruben Hernandez v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION AUG 03 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUBEN HERNANDEZ, AKA Ruben Nos. 13-72087
Hernandez Sosa, 13-73923
Petitioner, Agency No. A073-979-735
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
In these consolidated petitions for review, Ruben Hernandez, a native and
citizen of Mexico, petitions for review of the Board of Immigration Appeals’
(“BIA”) order denying his motion to reopen removal proceedings based on
ineffective assistance of counsel (petition No. 13-72087), and his subsequent
*
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).
motion to reconsider (petition No. 13-73923). We have jurisdiction under 8 U.S.C.
§ 1252. We review for abuse of discretion the denial of a motion to reopen or
reconsider, and review de novo questions of law and claims of ineffective
assistance. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We
deny the petitions for review.
The BIA did not abuse its discretion in denying Hernandez’s March 22,
2013, motion to reopen for failure to establish prejudice where he has not shown
how different conduct by his prior attorney may have affected the outcome of
proceedings. See id. at 793 (to prevail on an ineffective assistance of counsel
claim, a petitioner must demonstrate that he was prejudiced by counsel’s
performance). Hernandez has not established that the BIA applied an incorrect
prejudice standard. In light of this disposition, we do not reach Hernandez’s
contention regarding timeliness.
The BIA did not abuse its discretion in denying the June 17, 2013, motion to
reconsider, where Hernandez failed to establish any error of fact or law in its May
16, 2013, decision. See 8 C.F.R. § 1003.2(b)(1) (“A motion to reconsider shall
state the reasons for the motion by specifying the errors of fact or law in the prior
Board decision”). Insofar as Hernandez’s motion to reconsider could also be
construed as a motion to reopen due to the further documentation submitted, the
2 13-72087; 13-73923
BIA did not abuse its discretion in denying the motion as untimely and number-
barred. See 8 C.F.R. § 1003.2(c)(2).
Hernandez’s contention that the BIA ignored arguments and evidence is not
supported by the record. It follows that he failed to establish a due process
violation. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a
due process challenge, an alien must show error and prejudice).
PETITIONS FOR REVIEW DENIED.
3 13-72087; 13-73923