Santos Ernesto Villa Martinez 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NOT FOR PUBLICATION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
SANTOS ERNESTO VILLA
MARTINEZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-74777
Agency No. A088-423-365
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 10, 2011**
Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.
Santos Ernesto Villa Martinez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his motion to reopen
proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review de novo
FILED
JAN 25 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-74777 2
questions of law, and review for abuse of discretion the denial of a motion to
reopen. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny
the petition for review.
Villa Martinez was not denied his right to counsel because he knowingly and
voluntarily waived his right to counsel when he told the IJ he wanted to proceed
with his hearing without counsel after the IJ offered to continue his hearing in
order to ensure counsel’s presence. See Biwot v. Gonzales, 403 F.3d 1094, 1100
(9th Cir. 2005) (“[A]n alien cannot appear pro se without a knowing and voluntary
waiver of the right to counsel.”).
We agree with the BIA that Villa Martinez was not prejudiced by former
counsel’s failure to appear at his hearing because Villa Martinez was not eligible
for any relief at that time. See Mohammed, 400 F.3d at 793-94.
Villa Martinez’s contentions under 8 C.F.R. § 287.8(b)(2) are unavailing.
The BIA did not abuse its discretion in denying Villa Martinez’s motion to
reopen on the ground that he failed to demonstrate the evidence he submitted was
previously unavailable and material. See 8 C.F.R. § 1003.2(a), (c); Bhasin v.
Gonzales, 423 F.3d 977, 984 (9th Cir. 2005).

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08-74777 3
Villa Martinez’s remaining contentions are unavailing.
PETITION FOR REVIEW DENIED.

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