Sergio Gallardo-Davila v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO GALLARDO-DAVILA,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 15-73096
Agency No. A087-756-343
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Sergio Gallardo-Davila, 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 application for cancellation of
removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
FILED
MAR 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

-- 1 of 3 --

questions of law, and review for abuse of discretion the denial of a motion to
remand. Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1061-62 (9th Cir. 2008). We
deny in part and dismiss in part the petition for review.
Contrary to Gallardo-Davila’s contention, the BIA used the proper “future-
oriented” standard in conducting its hardship determination. See Figueroa v.
Mukasey, 543 F.3d 487, 497-98 (9th Cir. 2008). We also reject Gallardo-Davila’s
contention that the BIA engaged in improper factfinding as unsupported by the
record.
Because the BIA conducted a de novo review of the hardship determination,
we do not consider Gallardo-Davila’s challenges to the IJ’s hardship
determination. See Romero-Ruiz at 1061 (“Where the BIA conducts an
independent review of the IJ’s findings, we review the BIA’s decision and not that
of the IJ.”).
The BIA did not abuse its discretion in declining to remand based on
ineffective assistance of counsel, where Gallardo-Davila failed to establish
prejudice from his prior attorneys’ alleged ineffective assistance. See Mohammed
v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005) (to prevail on an ineffective
assistance claim, a petitioner must show prejudice).
15-73096 2

-- 2 of 3 --

Nor did the BIA abuse its discretion in declining to remand to allow
Gallardo-Davila to apply for asylum and related relief, where he failed to show that
his new evidence would likely change the result of his case. See Shin v. Mukasey,
547 F.3d 1019, 1025 (9th Cir. 2008).
We lack jurisdiction to consider Gallardo-Davila’s unexhausted contention
that he was denied a fair hearing. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th
Cir. 2010).
We do not consider the new evidence referenced in Gallardo-Davila’s
opening brief. See 8 U.S.C. § 1252(b)(4)(A) (judicial review is limited to the
administrative record); Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010).
Gallardo-Davila’s request for referral to the court’s mediation program is
denied, and to the extent Gallardo-Davila contends his case warrants a favorable
exercise of prosecutorial discretion, we lack jurisdiction to consider this
contention. See Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012).
In light of this disposition, we do not reach Gallardo-Davila’s remaining
contentions regarding his prior counsels’ alleged lack of competence or the
applicability of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
15-73096 3

-- 3 of 3 --