Gildardo Vazquez-Mendez v. Loretta E. Lynch ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 3 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GILDARDO VAZQUEZ-MENDEZ, Nos. 14-71255
15-72521
Petitioner,
v. Agency No. A200-705-932
LORETTA E. LYNCH, Attorney General,
MEMORANDUM*
Respondent.
On Petition for Review of Orders of the
Board of Immigration Appeals
Submitted October 25, 2016**
Before: LEAVY, SILVERMAN, and GRABER, Circuit Judges.
In these consolidated petitions for review, Gildardo Vazquez-Mendez, a
native and citizen of Mexico, petitions for review of the Board of Immigration
Appeals’ (“BIA”) orders dismissing his appeal from an immigration judge’s order
denying his motion to reopen removal proceedings conducted in absentia, and
*
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).
denying his subsequent motion to reopen. We have jurisdiction under 8 U.S.C. §
1252. We review for abuse of discretion the denial of a motion to reopen, and
review de novo constitutional claims. Hernandez-Velasquez v. Holder, 611 F.3d
1073, 1077 (9th Cir. 2010). We deny the petitions for review.
The agency did not abuse its discretion in denying Vazquez-Mendez’s first
motion to reopen his in absentia removal order, where written notice of the hearing
was served on his attorney of record. See 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2); 8
C.F.R. § 1292.5(a) (permitting notice on alien’s attorney of record); Garcia v. INS,
222 F.3d 1208, 1209 (9th Cir. 2000) (notice to the attorney of record constitutes
notice to the alien).
The BIA did not abuse its discretion or violate due process in denying
Vazquez-Mendez’s second motion to reopen, based on ineffective assistance of
counsel, for failure to establish prejudice, where he has not shown that the
documents submitted with his appeal to the BIA may have affected the outcome of
his proceedings. See Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th
Cir. 2015) (to establish prejudice, “a petitioner must show counsel’s performance
was so inadequate that it may have affected the outcome of proceedings.”
(quotation marks and citations omitted)).
2 14-71255 & 15-72521
In light of this disposition, we do not reach Vazquez-Mendez’s remaining
contentions regarding the alleged conduct of former counsel.
PETITIONS FOR REVIEW DENIED.
3 14-71255 & 15-72521