Hernandez Peral v. Holder , 390 F. App'x 703 ( 2010 )

FILED
NOT FOR PUBLICATION AUG 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARBELLA HERNANDEZ PERAL, No. 08-70439
Petitioner, Agency No. A097-358-701
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 19, 2010 **
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
Marabella Hernandez Peral, a native and citizen of Mexico, petitions for
review from the Board of Immigration Appeals’ (“BIA”) order denying her motion
to remand. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for
*
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).
abuse of discretion the denial of a motion to remand, Movsisian v. Ashcroft, 395
F.3d 1095, 1098 (9th Cir. 2005), and we deny the petition for review.
The BIA did not abuse its discretion in denying Hernandez Peral’s motion to
remand because she failed to establish prejudice from her former counsel’s
representation as she is statutorily ineligible for cancellation of removal. See
Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (to prevail on an
ineffective assistance of counsel claim a petitioner must demonstrate prejudice).
Hernandez Peral’s contention that service of the facially valid notice to appear on
November 23, 2003, did not terminate her accrual of physical presence time is
unpersuasive. See 8 U.S.C. § 1229b(b)(1)(A), (d)(1)(A); Garcia-Ramirez v.
Gonzales, 423 F.3d 935, 937 n.3 (9th Cir. 2005) (per curiam) (accrual of physical
presence time ends when removal proceedings are commenced through service of a
notice to appear).
In light of our disposition, we need not address Hernandez Peral’s remaining
contention.
PETITION FOR REVIEW DENIED.
2 08-70439