Julian Montes-Varela v. Jefferson Sessions

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JULIAN IVAN MONTES-VARELA, AKA No. 16-70125 Julian Montes, AKA Julian Ivan Montes, Agency No. A076-256-520 Petitioner,

v. MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted May 15, 2018**

Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.

Julian Ivan Montes-Varela, a native and citizen of Mexico, petitions for

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

remand removal proceedings. 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 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 remand. Romero-

Ruiz v. Mukasey, 538 F.3d 1057, 1062 (9th Cir. 2008). We deny the petition for

review.

The BIA did not abuse its discretion in denying Montes-Varela’s motion to

remand for failure to show prejudice from any ineffective assistance of counsel,

where he failed to show he had a visa immediately available for adjustment of

status. See Mohammed v. Gonzales, 400 F.3d 785, 793-94 (9th Cir. 2005) (to

demonstrate ineffective assistance of counsel, petitioner must show he was

prejudiced by counsel’s performance; prejudice results when counsel’s

performance may have affected the outcome of proceedings); 8 U.S.C. §

1255(a)(3) (alien must have a visa immediately available to adjust status). In light

of this dispositive determination, we do not reach Montes-Varela’s remaining

contentions. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts

are not required to decide issues unnecessary to the results they reach).

PETITION FOR REVIEW DENIED.

2 16-70125