SEGUNDO MEDARDO RECALDE CADENA; et. al 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 finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
KS/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEGUNDO MEDARDO RECALDE
CADENA; et. al,
Petitioners,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-71202
Agency Nos. A096-344-349
A096-344-350
A096-344-351
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Segundo Medardo Recalde Cadena, his wife Flor Del Carmen Moreno
Condor, and daughter Guadalupe Elizabeth Gutierrez Moreno, natives and citizens
of Ecuador, petition for review of the Board of Immigration Appeals’ (“BIA”)
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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order denying their motion to reopen. We have jurisdiction pursuant to 8 U.S.C.
§ 1252. We review for abuse of discretion the denial of a motion to reopen and
review de novo claims of due process violations, including ineffective assistance of
counsel claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).
We deny the petition for review.
We agree with the BIA that petitioners failed to show they were prejudiced
by their former counsel’s performance. See Rojas-Garcia v. Ashcroft, 339 F.3d
814, 826 (9th Cir. 2003) (where petitioner’s counsel failed to file a brief with the
BIA, presumption of prejudice was rebutted because petitioner could not
demonstrate plausible grounds for relief).
Petitioners contend that the BIA violated due process in requiring them to
show plausible grounds for relief without providing a transcript of their hearing.
Petitioners, however, have not demonstrated that they were prejudiced by the lack
of a transcript. Cf. Siong v. INS, 376 F.3d 1030, 1041-42 (9th Cir. 2004) (holding
that a transcript would reveal whether petitioner had plausible grounds for relief
where IJ denied asylum claim in part due to petitioner’s unresponsive answers, and
the transcript could reveal these were due to a faulty translation).

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Petitioners’ contention that the BIA used the incorrect prejudice standard is
not supported by the record.
PETITION FOR REVIEW DENIED.

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