Francisco Orejel-Garcia 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).
/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO OREJEL-GARCIA,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-71505
Agency No. A078-193-189
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 15, 2009**
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Francisco Orejel-Garcia, 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 pursuant to 8 U.S.C. § 1252. We
FILED
DEC 28 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

/Research 07-71505 2
review for abuse of discretion the denial of a motion to reopen, and review de novo
questions of law, including claims of due process violations due to ineffective
assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.
2005). We deny the petition for review.
We agree with the BIA that Orejel-Garcia’s motion failed to demonstrate
that the performance by former counsel resulted in prejudice. See Rojas-Garcia v.
Ashcroft, 339 F.3d 814, 826-27 (9th Cir. 2003) (no prejudice where motion failed
to present plausible grounds for relief). We reject Orejel-Garcia’s contention that
the BIA utilized an improper standard in its prejudice determination. See id.
To the extent Orejel-Garcia contends that the BIA failed to consider some of
the evidence he submitted with the motion to reopen, he has not overcome the
presumption that the BIA did review the record. See Fernandez v. Gonzales, 439
F.3d 592, 603 (9th Cir. 2006).
PETITION FOR REVIEW DENIED.

-- 2 of 2 --