Flores-Pelayo v. Holder , 397 F. App'x 298 ( 2010 )

FILED
NOT FOR PUBLICATION SEP 03 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JESUS FLORES-PELAYO, No. 06-75135
Petitioner, Agency No. A037-429-770
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 31, 2010 **
Seattle, Washington
Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.
Jesus Flores-Pelayo (“Flores”), a native and citizen of Mexico and
permanent resident of the United States, was convicted of lewd and lascivious acts
with a child in violation of California Penal Code § 288. Flores was charged as
removable under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act for his
*
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).
conviction of an aggravated felony offense. After a merits hearing, the
immigration judge (“IJ”) found that Flores’s conviction constituted an aggravated
felony, denied his application for § 212(c) relief, and ordered his removal to
Mexico. At his initial removal proceeding, Flores was represented by Michael
Johnson-Ortiz, who has since been disbarred, in part for his deficient performance
with regard to his representation of Flores. Flores submitted a motion to reopen
based on ineffective assistance of counsel, which the IJ denied. The Board of
Immigration Appeals (“BIA”) dismissed Flores’s appeals from both decisions, as
well as his motion to reconsider its order.
On appeal, we granted the government’s unopposed motion to remand based
on Maravilla Maravilla v. Ashcroft, 381 F.3d 855 (9th Cir. 2004), which held that
to establish ineffective assistance of counsel, a prima facie showing of eligibility
for relief was not necessary, and an alien need only to show that counsel’s
assistance was so inadequate that it may have affected the case’s outcome. On
remand, the BIA again denied relief, noting that there was no dispute about the
underlying facts pertaining to Flores’s aggravated felony offense and that any
ineffective assistance by counsel would not have affected the outcome. Flores now
petitions for review of the BIA’s denial of his motion to reconsider, and of the
2
BIA’s dismissal of his appeal of the IJ’s order denying his motion to reopen based
on a claim of ineffective assistance of counsel.
We conclude that any ineffective assistance of counsel in Flores’s initial
removal proceeding is immaterial, because after our recent en banc decision in
Abebe v. Mukasey, Flores is no longer statutorily eligible for § 212(c) relief.
554 F.3d 1203, 1205 (9th Cir. 2009) (en banc) (overruling Tapia-Acuna v. INS,
640 F.2d 223 (9th Cir. 1981), and holding that “[u]nder its plain language, section
212(c) gives the Attorney General discretion to grant lawful permanent residents
relief only from inadmissibility—not deportation.” (footnote omitted)). Because
Flores has not challenged his removability and has petitioned for no other relief,
there is no basis on which we may grant relief.
PETITION DENIED.
3