Julian Montes-Varela v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 21, 2018
• Docket: 16-70125
• Status: Unpublished

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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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