Elio Rios v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 23 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIO NAPOLEON RIOS, No. 14-73095
Petitioner, Agency No. A072-270-441
v.
MEMORANDUM*
JEFFERSON B. SESSIONS, III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
Elio Napoleon Rios, a native and citizen of El Salvador, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 reopen, and review
de novo claims of due process violations in removal proceedings, including claims
of 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 the motion to reopen for
failure to show prejudice, where Rios offered no evidence of any plausible grounds
for relief. Morales Apolinar v. Mukasey, 514 F.3d 893, 898 (9th Cir. 2008) (to
establish prejudice resulting from counsel’s deficient performance in failing to
raise claims for relief, a petitioner must “show plausible grounds for relief”
(internal quotation marks and citations omitted)).
We lack jurisdiction to consider Rios’s contentions that the agency erred or
abused its discretion in denying his application for cancellation of removal because
this petition for review is not timely as to the BIA’s 2013 order. See 8 U.S.C. §
1252(b)(1) (petition for review of a final order of removal must be filed within 30
days of that order); Martinez-Serrano v. INS, 94 F.3d 1256 (9th Cir. 1996) (this
court lacks jurisdiction to review an underlying order of removal, where a
petitioner did not seek timely review of that order, and instead filed a petition for
review from the denial of a later motion to reopen).
We do not consider the documents that Rios submitted with his opening
brief because they were not part of the administrative record. See 8 U.S.C.A.
2 14-73095
§ 1252(b)(4)(A)(judicial review is limited to the administrative record); Dent v.
Holder, 627 F.3d 365, 371 (9th Cir. 2010) (stating standard of review for out of
record evidence).
PETITION FOR REVIEW DENIED in part, DISMISSED in part.
3 14-73095