Tian Li v. Gonzales

225 F. App'x 502

Opinion

MEMORANDUM

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Tian Li, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for a waiver of inadmissibility. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review de novo non-discretionary eligibility determinations and due process challenges in immigration proceedings. See Vasquez-Zavalo, v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003) (due process challenge); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1145 (9th Cir.2002) (non-discretionary eligibility determination). We deny the petition for review.

Li did not appeal from the IJ’s decision denying his request for a waiver of inadmissibility pursuant to former § 212(c) of the Immigration and Nationality Act. Instead, Li claimed ineffective assistance of counsel led him to seek a 212(c) waiver rather than pursue a claim for withholding of removal. Because Li failed to present evidence that he was prima facie eligible for withholding, the BIA did not err in finding Li failed to establish prejudice resulted from the alleged ineffective assistance of counsel. See Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir.2004) (to demonstrate prejudice, a petitioner must demonstrate “plausible grounds for relief.”). Li’s claim that the BIA violated his due process rights by not remanding his case to the IJ is also unavailing.

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.