Juan Devora-Rojas v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JUAN ANDRES DEVORA-ROJAS, No. 11-71925 Petitioner, Agency No. A095-722-336 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 6, 2018** Pasadena, California Before: LIPEZ,*** NGUYEN, and OWENS, Circuit Judges. Juan Andres Devora-Rojas, a native and citizen of Mexico, petitions for review of a Board of Immigration Appeals' ("BIA" or "the Board") order denying * 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). *** The Honorable Kermit V. Lipez, United States Circuit Judge for the First Circuit, sitting by designation. his motion to (1) reconsider the dismissal of his appeal from an immigration judge's rejection of his application for cancellation of removal, and (2) reopen proceedings based on ineffective assistance of counsel. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reconsider or reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny in part and grant in part the petition for review. I. Motion for Reconsideration The BIA did not abuse its discretion in denying Devora-Rojas' motion to reconsider its November 2010 decision to dismiss his appeal on the ground that he failed to identify any error of law or fact in the BIA's earlier decision. See 8 U.S.C. § 1229a(c)(6)(A), (C); 8 C.F.R. § 1003.2(b); Matter of O-S-G-, 24 I. & N. Dec. 56, 57 (BIA 2006) ("A motion to reconsider challenges the Board's original decision and alleges that it is defective in some regard."). In his motion to reconsider, petitioner did not explain how the BIA erred in determining that he waived any challenge to the immigration judge's dispositive finding on the hardship prong of the cancellation-of-removal inquiry. See generally 8 U.S.C. § 1229b(b)(1) (listing the prerequisites for cancellation of removal, including a showing that "removal would result in exceptional and extremely unusual hardship to" qualifying family 2 members). Accordingly, petitioner failed to present a proper argument, and the BIA's dismissal of his appeal was not an abuse of discretion.1 II. Motion to Reopen The BIA abused its discretion in denying Devora-Rojas' motion to reopen based on ineffective assistance of counsel. "A claim of ineffective assistance of counsel requires a showing of inadequate performance and prejudice." Martinez- Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015) (per curiam). The prejudice element in the context of a motion to reopen requires the petitioner to show "that the asserted ground for relief is at least plausible." Id.2 The record in this case 1 To the extent that petitioner is attempting to challenge the BIA's original decision, we lack jurisdiction to consider his contentions because ...

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