Arnoldo Penaloza v. Eric Holder, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 20, 2012
• Docket: 10-71306
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 20 2012

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ARNOLDO PENALOZA, No. 10-71306

Petitioner, Agency No. A075-755-350

v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted November 13, 2012 **

Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.

Arnoldo Penaloza, a native and citizen of Mexico, petitions for review of an

order of the Board of Immigration Appeals (“BIA”) denying his motion to

reconsider the BIA’s denial of his earlier motion to reopen based on a claim of

ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We

* 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). review for abuse of discretion the BIA’s denial of a motion to reconsider or to

reopen, Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007), and review de

novo due process claims based on ineffective assistance of counsel, Santiago-

Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011). We deny the petition for

review.

The BIA did not abuse its discretion by denying Penaloza’s motion to

reconsider because he did not demonstrate any legal or factual error in the BIA’s

refusal to reopen his case due to his failure to show that his prior attorney’s actions

may have prejudiced the outcome of his appellate proceedings. See Yeghiazaryan

v. Gonzales, 439 F.3d 994, 998 (9th Cir. 2006) (“In filing a motion to reconsider,

the petitioner must ‘specify[] the errors of fact or law in the prior B[IA]

decision . . . .’” (citation omitted)); Nehad v. Mukasey, 535 F.3d 962, 967 (9th Cir.

2008) (“Prejudice only results when counsel’s performance is ‘so inadequate that it

may have affected the outcome of the proceedings.’” (citation omitted)).

Because this determination is dispositive of the present petition for review,

we need not address Penaloza’s remaining contentions regarding his prior

attorney’s performance or his compliance with the procedural requirements for

filing a claim of ineffective assistance of counsel. See Mendez-Alcaraz v.

2 10-71306 Gonzales, 464 F.3d 842, 844 (9th Cir. 2006) (declining to reach nondispositive

challenges to a BIA order).

PETITION FOR REVIEW DENIED.

3 10-71306