Rosales-Picen, et al v. Holder, No. 07-72562 (9th Cir. 2011)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAR 25 2011 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT IDANIA MAYBELI ROSALES-PICEN, Petitioner, No. 07-72562 Agency No. A076-680-122 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 18, 2011 San Francisco, California Before: WALLACE, NOONAN, and CLIFTON, Circuit Judges. Idania Rosales-Picen ( Rosales-Picen ) petitions for review of a decision of the Board of Immigration Appeals ( BIA ) denying her motion to reopen removal proceedings based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-311. We review ineffective assistance of counsel claims de novo and findings of fact regarding counsel s performance for substantial evidence. Lin v. Ashcroft, 377 F.3d 1014, 1024 (9th Cir. 2004). Ineffective assistance of counsel claims require a showing of prejudice to succeed. Id. Upon review of the record, we conclude that Rosales-Picen did not demonstrate prejudice arising out of prior counsel s failure properly to investigate and present Rosales-Picen s asylum claim based on her fear of persecution by the guerrillas in Guatemala. The new evidence Rosales-Picen offered in support of her motion to reopen does not undermine the agency s prior conclusions that (1) Rosales-Picen did not establish past persecution, and (2) Rosales-Picen failed to prove that she could not reasonably relocate to a place within Guatemala where she would be safe from the guerrillas. Substantial evidence supports the BIA s finding that it was not clear that a claim based on domestic violence [was] sustainable in 1999. Accordingly, the BIA did not err when it concluded that prior counsel Miguel Gadda s failure to present a domestic-violence based asylum claim in 1999 did not amount to ineffective assistance. The petition for review is DENIED. 2

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