Samuel Montero-Pereyda v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 15 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SAMUEL MONTERO-PEREYDA, AKA No. 16-73185 Samuel Mondedo-Cadeda, Agency No. A205-489-582 Petitioner, v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 12, 2018** Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges. Samuel Montero-Pereyda, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen 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 denial of a motion to reopen. Martinez- Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015). We deny the petition for review. The BIA did not abuse its discretion in denying Montero-Pereyda’s motion to reopen based on ineffective assistance of counsel for failure to show prejudice. See Mohammed v. Gonzales, 400 F.3d 785, 793-94 (9th Cir. 2005) (to demonstrate ineffective assistance of counsel, petitioner must show counsel failed to perform with sufficient competence and that petitioner was prejudiced by counsel’s performance; to show prejudice, petitioner must show counsel’s performance was so inadequate it may have affected the outcome of proceedings). Because the prejudice determination is dispositive, we do not reach Montero-Pereyda’s contentions regarding former counsel’s performance. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004). Montero-Pereyda’s contention that the BIA applied the incorrect standard with regard to his claim under the Convention Against Torture is not supported. PETITION FOR REVIEW DENIED. 2 16-73185 16-73185 Court of Appeals for the Ninth Circuit ca9 9th Cir. Samuel Montero-Pereyda v. Jefferson Sessions 15 June 2018 Agency Unpublished f61f85d8b894a9554330c74eddc53412ae3e0a2a

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