Rodelmiro Jesus Estrada- Castillo v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODELMIRO JESUS ESTRADA-
CASTILLO,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-72668
Agency No. A095-723-433
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 15, 2013**
Before: FISHER, GOULD, and BYBEE, Circuit Judges.
Rodelmiro Jesus Estrada-Castillo, a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying
his motion to reconsider and to reopen removal proceedings based on ineffective
assistance of counsel. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
FILED
OCT 25 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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for abuse of discretion the denial of motions to reopen and reconsider, and review
de novo claims of due process violations. Mohammed v. Gonzales, 400 F.3d 785,
791-92 (9th Cir. 2005). We deny the petition for review.
Construed as a motion to reconsider, the BIA was within its discretion in
denying Estrada-Castillo’s motion where the motion failed to identify any error of
fact or law in the BIA’s prior decision denying reopening. See 8 C.F.R.
§ 1003.2(b)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir. 2001)
(en banc) (purpose of a motion to reconsider is not to raise new facts, but rather to
demonstrate that the immigration judge or the BIA erred as a matter of law or fact).
It follows that Estrada-Castillo’s due process claim fails. See Lata v. INS, 204 F.3d
1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a due
process claim).
Construed as a motion to reopen, the BIA did not abuse its discretion in
denying the motion because Estrada-Castillo failed to establish prejudice. See
Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (to prevail on an
ineffective assistance of counsel claim, petitioner must demonstrate prejudice).
PETITION FOR REVIEW DENIED.
11-72668 2

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