Irma Rosario Noriega Salazar v. ERIC H. HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IRMA ROSARIO NORIEGA SALAZAR,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-72988
Agency No. A095-446-797
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2010**
Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.
Irma Rosario Noriega Salazar (“Noriega”), a native and citizen of Bolivia,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying
her motion to reopen proceedings due to ineffective assistance of counsel. We
have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
FILED
NOV 24 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-72988 2
denial of a motion to reopen, and review de novo questions of law, including
claims of due process violations. See Mohammed v. Gonzales, 400 F.3d 785,
791-92 (9th Cir. 2005). We deny the petition for review.
The BIA did not abuse its discretion by denying Noriega’s February 1, 2008,
motion to reopen on the ground that she did not establish her former counsel failed
to present available evidence that may have affected the outcome of her case. See
id. at 793-94 (petitioner must show prejudice to prevail on an ineffective assistance
claim). Contrary to Noriega’s contention, a presumption of prejudice does not
apply. Cf. Singh v. Ashcroft, 367 F.3d 1182, 1189 (9th Cir. 2004) (applying
presumption of prejudice where counsel failed to file any brief on appeal).
Noriega’s contention that the BIA applied an incorrect standard in ruling on
her motion to reopen is unsupported by the record.
In light of our disposition, we do not address Noriega’s remaining arguments
contentions.
PETITION FOR REVIEW DENIED.

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